Halsted v. Ryan

• Decision Date: 10 July 1899
• Citation: 8 Kan.App. 860,57 P. 852
• Parties: HALSTED v. RYAN.
• Court: Kansas Court of Appeals

57 P. 852

8 Kan.App. 860

HALSTED v. RYAN.

Court of Appeals of Kansas, Southern Department, Central Division

July 10, 1899

Syllabus

The condition in the note sued on having been performed in all essential respects by the payee thereof, the same became due and payable, and it was error for the trial court to direct a verdict in favor of the promisor.

Error from district court, Greenwood county; C. W. Shinn, Judge.

Action by J. E. Halsted against W. J. Ryan. Judgment for defendant and plaintiff brings error. Reversed.

W. H Cowles and J. B. Clogston, for plaintiff in error.

OPINION

PER CURIAM.

The plaintiff in error, as plaintiff below, brought this action upon a written instrument, to be herein called a "note," reading as follows:

"Phoenix Mutual Life Insurance Company. Madison. Ks., May 10, 1894. Upon delivery of a policy of life insurance in the Phoenix Mutual Life Insurance Company, of Hartford, Conn., on the 20-pay life plan, for $5,000, I promise to pay to the order of J. S. Coe one hundred and sixty-two and ¹⁰/₁₀₀ dollars, at room 31, Columbian Building, Topeka, Kansas, providing said policy, when delivered, corresponds with the statements made and embodied in the sample left with me; otherwise, this note to be void and of no effect. W. J. Ryan. No. 126, 714." Indorsed: "Pay to J. E. Halsted, Genl. Agt., or order. J. S. Coe."

In his answer the defendant admitted the execution of the note, and alleged misrepresentations on the part of Coe, the agent, as to the meaning of certain provision of the sample policy, and an agreement on his part that the policy should show it was issued on the 21st day of March, 1894, whereas it was in fact dated the 23d day of March, 1894. The date was important, as the applicant was born on September 21, 1859, and it was agreed he should be insured as being 34 years of age. The plaintiff introduced in evidence the note sued on, the sample policy furnished by Coe to Ryan, and the original policy delivered under the contract, and proved that, according to the custom of life insurance companies, an applicant is considered to be 34 years old until the one hundred and eighty-fourth day after his 34th birthday. The defendant demurred to the evidence of the plaintiff "for the reason that there is no evidence to show that the plaintiff is the owner and holder of the contract sued upon in this action," and the demurrer was overruled. The court refused to allow ...