Morrison v. Bandt

• Decision Date: 28 January 1939
• Docket Number: 34110.
• Citation: 149 Kan. 200,86 P.2d 480
• Parties: MORRISON et al. v. BANDT et al.
• Court: Kansas Supreme Court

86 P.2d 480

149 Kan. 200

MORRISON et al. v. BANDT et al.

No. 34110.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

A bargain collaterally and remotely connected with an illegal purpose is not rendered illegal thereby if proof of bargain can be made without relying on illegal transaction.

How close a bargain must be connected with an illegal purpose to make bargain itself illegal is question of degree.

On demurrer to evidence, the court must view evidence in light most favorable to party adducing it and allow all reasonable inferences in favor of such party.

A note and mortgage given by owners of grain elevator in pursuance of plan to control price of grain and prevent competition were unenforceable because tainted with an illegal purpose.

1. In passing on a demurrer to the evidence the court is required to view the evidence in the light most favorable to the party adducing it, and allow all reasonable inferences in favor of such party.

2. A bargain collaterally and remotely connected with an illegal purpose is not rendered illegal thereby if proof of the bargain can be made without relying on the illegal transaction. How close a bargain must be connected with an illegal purpose in order to make the bargain itself illegal is a question of degree. The record examined and held the loan agreement sued on herein was illegal and unenforceable.

Appeal from District Court, Phillips County; Edward E. Kite, Judge.

Foreclosure action by Robert T. Morrison and others, copartners doing business under the firm name of Morrison-Gregg-Mitchell Grain Company, against C. H. Bandt and others. Judgment for defendants, and plaintiffs appeal.

A. W Relihan and T. D. Relihan, both of Smith Center, for appellants.

W. A Barron, of Phillipsburg, and W. S. Rice, of Smith Center, for appellees.

ALLEN Justice.

This was an action on a note, and to foreclose a mortgage on a grain elevator given to secure the note. The burden of proof was on defendants. At the conclusion of defendants' evidence plaintiffs filed a demurrer to the evidence which was overruled. Plaintiffs stood on their demurrer and bring this appeal.

This is the second appearance of this case in this court. See Morrison v. Bandt, 145 Kan. 942, 67 P.2d 584. The former appeal came up on rulings of the trial court on demurrer of the plaintiffs to answers of the defendants. The order of the trial court in overruling the demurrers was affirmed. In due course the case came on for trial in the district court. The case was tried to the court without a jury, with the result as above stated.

The action was to foreclose a real estate mortgage upon an elevator at Phillipsburg. The mortgage was originally held by the First National Bank of that city. In June, 1931, the plaintiffs herein took up the indebtedness at the bank in the sum of $5,000, and the defendants C. H. Bandt and Wilma Bandt then executed to the plaintiffs the note and mortgage involved in the present action. The Bandts were further indebted to the bank, which indebtedness was secured by a second mortgage on the elevator. Separate answers were...