Fisher v. Spillman
| Decision Date | 07 October 1911 |
| Docket Number | 17,223 |
| Citation | 85 Kan. 552,118 P. 65 |
| Parties | HENRY G. FISHER, Appellee, v. S. E. SPILLMAN et al., Appellants |
| Court | Kansas Supreme Court |
Decided July, 1911.
Appeal from Allen district court.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. NEGOTIABLE INSTRUMENTS--Assumption of Debt by Third Party--Principal and Surety--Extension--Release of Surety. Stove Works v. Caswell, 48 Kan. 689, 29 P. 1072, and Mulvane v. Sedgley, 63 Kan. 105, 64 P. 1038 followed, and held, in an action on a promissory note that an answer admitting the execution and delivery of the note and alleging that it was secured by a mortgage on certain real estate in Iowa, that the defendants afterward sold and conveyed the land to a third person, who assumed and agreed to pay the mortgage indebtedness, that the plaintiff as payee accepted him as his creditor and afterward, without the knowledge or consent of the defendants, made a valid agreement with the purchaser extending the time of payment of the debt, states a good defense.
2. NEGOTIABLE INSTRUMENTS--Assumption of Debt--Statute of Frauds. Neither the promise of such purchaser to the debtor to discharge his indebtedness nor the acceptance by the creditor of the purchaser as his debtor is within the statute of frauds.
3. PLEADINGS-- Unverified General Denial--No Issue Raised. In an action on a promissory note brought by the payee an unverified general denial raises no issue.
4. APPEALS--Abstract Need Not Show Notice of Appeal. No provision of the code of civil procedure nor any rule of court requires the abstract to show notice or proof of notice of appeal.
H. A. Ewing, S. A. Gard, G. R. Gard, A. H. Campbell, and John F. Goshorn, for the appellants.
Travis Morse, and G. E. Pees, for the appellee.
Action on a promissory note and interest coupons. The defendants answered admitting the execution and delivery of the notes and alleged as a defense to the action that at the time the notes were executed they were secured by a mortgage upon certain real estate in Iowa; that shortly thereafter the defendants sold and transferred the real estate to one George H. Gallup, and that as part of the purchase price and consideration of such sale Gallup assumed and agreed to pay the mortgage indebtedness; that the plaintiff accepted him as his debtor upon the note and mortgage and thereafter, without the knowledge or consent of either of the defendants, made a valid and binding agreement upon sufficient consideration for an extension of the time of payment by Gallup, which was carried into effect, and that in pursuance of said agreement Gallup paid a portion of the indebtedness to the plaintiff, and that by reason of the extension of the time of payment without defendants' knowledge or consent they became and were released from further liability upon the notes.
To this defense the trial court sustained a demurrer. The defendants elected to stand upon their answer, and, judgment having been rendered against them on the notes, they appeal.
The question to be determined is whether the court erred in sustaining the demurrer. It is conceded that the ruling is in direct conflict with the doctrine declared in the case of Stove Works v. Caswell, 48 Kan. 689, 29 P. 1072, but it is insisted by plaintiff that the doctrine of that case is unsound, that it has been criticised in dissenting opinions in a subsequent case, and should be overruled. We are not inclined to reopen the discussion of the principles of law upon which the decision rests. The fact that there is not entire harmony in the authorities upon the question was commented upon in the opinion. The court at that time deliberately adopted the rule which it declared to be in accord with the weight of authority and of reason and followed those cases holding that where a purchaser of property agrees with the vendor to assume an indebtedness thereon and as part of the consideration to pay the creditor of the vendor such indebtedness, the creditor, by accepting and agreeing to the arrangement, becomes the creditor of such purchaser, the purchaser thereafter sustaining to him the relation of principal debtor, and the vendor, who was the original debtor, thereafter becoming a mere surety for the payment of the debt, and further holding that his liability as such surety will be released by a valid agreement for the extension of the time of payment made by the creditor with the debtor without...
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...and filing proof thereof with the clerk of the trial court, Schmuck v. Missouri K. & T. R. Co., 85 Kan. 447, 116 P. 818; Fisher v. Spillman, 85 Kan. 552, 118 P. 65; Thisler v. Little, 86 Kan. 787, 121 P. 1123; Zagranis v. Zagranis, 159 Kan. 456, 457, 156 P.2d 847, and, that when the appelle......
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...There is a line of Kansas cases which holds that a surety is discharged when the time to pay a debt is extended. Fisher v. Spillman, 85 Kan. 552, 554, 118 P. 65 (1911); Bank v. Brooks, 64 Kan. 285, Syl., 67 P. 860 (1902); Stove Works v. Caswell, 48 Kan. 689, Syl., 29 P. 1072 (1892). Both si......
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