Fisher v. Spillman, 17,223
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | PORTER, J.: |
| Citation | 85 Kan. 552,118 P. 65 |
| Parties | HENRY G. FISHER, Appellee, v. S. E. SPILLMAN et al., Appellants |
| Decision Date | 07 October 1911 |
| Docket Number | 17,223 |
118 P. 65
85 Kan. 552
HENRY G. FISHER, Appellee,
v.
S. E. SPILLMAN et al., Appellants
No. 17,223
Supreme Court of Kansas
October 7, 1911
Decided July, 1911.
Appeal from Allen district court.
Judgment reversed and cause remanded.
SYLLABUS
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.
OPINION [118 P. 66]
[85 Kan. 553] PORTER, J.:
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.
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Polzin v. National Co-op. Refinery Ass'n, No. 39966
...thereof with the clerk of the trial court, [179 Kan. 674] 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 appellee ......
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First Nat. Bank of Anthony v. Dunning, No. 68362
...is a line of Kansas cases which holds that a surety is discharged when the time to pay a Page 496 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......
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Webb v. Graham, No. 46838
...it was not essential that the agreement be a part of the deed, nor that the promisor should have signed any writing. Fisher v. Spillman, 85 Kan. 552, 118 P. 65. . . .' (p. 163, 178 P. p. [212 Kan. 367] (See also Woodburn v. Harvey, 107 Kan. 57, 190 P. 620; Foetisch v. White, 124 Kan. 136, 2......
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Morlan v. Loch, 19,516
...a surety." (See, also, Bowling v. Garrett, 49 Kan. 504, 520, 31 P. 135; Mulvane v. Sedgley, 63 Kan. 105, 64 P. 1038; Fisher v. Spillman, 85 Kan. 552, 118 P. 65; Bank v. Livermore, 90 Kan. 395, 402, 133 P. 734.) There is nothing in this case to indicate that the mortgagee accepted the defend......
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Polzin v. National Co-op. Refinery Ass'n, No. 39966
...thereof with the clerk of the trial court, [179 Kan. 674] 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 appellee ......
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First Nat. Bank of Anthony v. Dunning, No. 68362
...is a line of Kansas cases which holds that a surety is discharged when the time to pay a Page 496 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......
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Webb v. Graham, No. 46838
...it was not essential that the agreement be a part of the deed, nor that the promisor should have signed any writing. Fisher v. Spillman, 85 Kan. 552, 118 P. 65. . . .' (p. 163, 178 P. p. [212 Kan. 367] (See also Woodburn v. Harvey, 107 Kan. 57, 190 P. 620; Foetisch v. White, 124 Kan. 136, 2......
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Morlan v. Loch, 19,516
...a surety." (See, also, Bowling v. Garrett, 49 Kan. 504, 520, 31 P. 135; Mulvane v. Sedgley, 63 Kan. 105, 64 P. 1038; Fisher v. Spillman, 85 Kan. 552, 118 P. 65; Bank v. Livermore, 90 Kan. 395, 402, 133 P. 734.) There is nothing in this case to indicate that the mortgagee accepted the defend......