Osborn v. Millikan
| Decision Date | 08 December 1934 |
| Docket Number | 31858. |
| Parties | OSBORN v. MILLIKAN. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Note authorizing holder, without notice to or consent of indorsers or makers, to extend time of payment, provided that time of all extensions does not exceed one year from maturity of note, held not payable at "fixed or determinable future time," within statute, as regards indorser's liability (Rev. St. 1923, 52--201, 52--204).
A promissory note, otherwise negotiable in form, which contains on its face a provision to the effect that the holder without notice to or the consent of the makers, or indorser, may extend the date of its payment any number of times, provided the time of all such extensions does not exceed one year, is not payable at a fixed or determinable time, and hence is nonnegotiable.
Appeal from District Court, Stafford County; Ray H. Beals, Judge.
Action by Lizzie Osborn against James Millikan, also known as J. B Milliken. From an adverse judgment, defendant appeals.
Judgment reversed, with directions.
Robert Garvin, Evart Garvin, and Morris Garvin, all of St. John, for appellant.
D. H Donnelly, of Stafford, for appellee.
This is an action on a promissory note by the holder against the makers and the indorsers. The makers defaulted, and judgment was taken against them. The indorser defended on the ground that the note was a nonnegotiable instrument, and that his indorsement had the effect only of transferring title. Judgment was for plaintiff, and the indorser has appealed.
The note sued upon, otherwise negotiable in form, contains the following provision, which appellant contends renders it nonnegotiable (we italicize the language specifically relied upon): " It is understood and agreed by the endorsers signers and guarantors, that this note may be extended by the payee or holder without notice to or the consent of either of them, any number of times, provided that the time of all such extensions do not exceed one year from the maturity thereof according to its terms, and that it is further agreed and understood that any endorsement by the payee or holder of this note, with the consent of the maker or one of them, of an extension of the time of its payment, shall in no manner affect its negotiability, but the same shall be and is negotiable until the time to which it has been extended has expired."
Our statute, so far as here pertinent, reads:
The question for our determination is whether the note is payable "at a fixed or...
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- Wolff v. Rife
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United States v. General Resources, Ltd.
...in the Longmont Bank case. Decisions from other jurisdictions follow a similar line. The Supreme Court of Kansas, in Osborn v. Millikan, 140 Kan. 592, 38 P.2d 104, held a note non-negotiable which permitted either the payee or holder to extend the time of payment within limits. The Supreme ......