Hall v. The First National Bank of Hays City

• Decision Date: 04 January 1897
• Docket Number: 104
• Citation: 5 Kan.App. 493,47 P. 566
• Parties: A. S. HALL v. THE FIRST NATIONAL BANK OF HAYS CITY, KAN
• Court: Kansas Court of Appeals

47 P. 566

5 Kan.App. 493

A. S. HALL v. THE FIRST NATIONAL BANK OF HAYS CITY, KAN

No. 104

Court of Appeals of Kansas, Northern Department, Western Division

January 4, 1897

January 4, 1897.

Error from Ellis District Court. Hon. S. J. Osborn, Judge. Affirmed.

Judgment affirmed.

Charles A. Hiller, for plaintiff in error.

A. J Bryant, for defendant in error.

GARVER J. Clark, J., concurring; Gilkeson, P. J., having been of counsel, not sitting.

OPINION

GARVER, J.

This was an action, commenced February 18, 1893, before a justice of the peace, by the First National Bank of Hays City, Kan., against A. S. Hall and John Yunker, on a demand note for $ 215.40, executed November 5, 1889. No answer was filed by the defendants; but on the trial in the District Court Hall made defense by claiming that he signed the note as surety for Yunker, and that he was released from liability thereon because the time for payment had been extended by the Bank without his consent. The case was tried by a jury, and a general verdict returned in favor of the plaintiff.

Various matters which we deem unimportant were considered upon the trial, and are discussed at considerable length in the briefs of counsel. While the note in suit was drawn payable on demand, it seems to have been the general understanding of the parties thereto that no demand of payment would be made prior to August, 1890. On December 9 1891, a note for the same debt was taken by the Bank from Yunker and wife, secured by a chattel mortgage on personal property, some of which was property not included in the chattel mortgage given to secure the first note. There was no understanding or agreement that the last note was not just what it purported to be--a note payable on demand. There was some evidence tending to show that the second note and mortgage were taken with the knowledge and consent of Hall, sufficient in this respect, we think, to maintain the verdict of the jury. But, apart from that, we think there was an entire failure of proof that any such extension of the time for the payment of this debt was made, as would release the surety. When the second note was taken, the Bank held, against Yunker as principal and Hall as surety, a note payable on demand. The new note was likewise payable on demand. The amount of the indebtedness of Yunker to the Bank was not changed, nor was any change made in the terms of payment. The mere taking of additional security for a debt does not...