O'Leary v. Reed

• Decision Date: 01 July 1883
• Parties: FRANK O'LEARY v. MATTHIAS REED, et al
• Court: Kansas Supreme Court

2 P. 114

30 Kan. 749

FRANK O'LEARY v. MATTHIAS REED, et al

Supreme Court of Kansas

July 1, 1883

Error from Miami District Court.

ACTION by Reed and two others, partners as Reed, Staley & Co. against O'Leary, to recover on a promissory note. Trial at the October Term, 1882, and judgment for plaintiffs for $ 1,092.99. Defendant brings the case here. The facts are stated in the opinion.

Judgment affirmed.

Burris & Little, for plaintiff in error.

Brayman & Sheldon, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This action was brought to recover upon a promissory note alleged to have been executed by the plaintiff in error and one James Murray to the defendants in error. The plaintiff in error filed an answer alleging that no recovery ought to be had upon the note against him, for "that at the execution and delivery of the note he was in a state of total drunkenness; that he was in such a state of drunkenness as drowned reason, memory, and judgment; and too drunk to understand or assent to any contract." Upon the trial, the plaintiff in error had the opening of the case and assumed the burden of proof. His evidence was in support of the allegations of his answer, and he produced several witnesses who testified he was in a state of intoxication on or about the date of the execution of the note sued on. Matthias Reed, one of the defendants in error, who lives at Louisburg, where the bank of the defendants in error is situated, testified that on the day the note bears date, the plaintiff in error came to his office at nine o'clock in the morning and said he wanted some money; that he told him he could not tell (if he could have it) without going to the bank, which was two or three hundred yards distant; that plaintiff in error then said he had been to the bank and they had refused him, and said he was no drunker than I was; that he stayed there until the evening, and then insisted he must have the money before the four o'clock train; that he got the money, and was the first one to sign the note; that he signed the note at the bank between three and four o'clock; that he said they had bought cattle, and wanted the money and not a draft; that after he got the money he went away on a freight train; that he got other money before that time at the bank, and in giving the notes therefor he had signed them himself, and that he had seen him sign three or four notes.

Staley, one of the defendants in error, testified he was present when the note was executed, and saw the plaintiff in error sign it himself; that he knew the plaintiff in error signed the note; that he remembered distinctly the fact, because he had the curiosity to see whether he would sign his name or make his mark.

One Chaplin testified he met the plaintiff in error at the bank on the day the note was executed; that he said he wanted a thousand dollars to pay on cattle he had bought; that he passed the money over to him, and he pushed it to James Murray without counting it; that he didn't see the...