Pracht v. McNee

• Decision Date: 07 July 1888
• Citation: 18 P. 925,40 Kan. 1
• Parties: FRED PRACHT v. JAMES MCNEE
• Court: Kansas Supreme Court

18 P. 925

40 Kan. 1

FRED PRACHT v. JAMES MCNEE

Supreme Court of Kansas

July 7, 1888

Error from Chase District Court.

ACTION by McNee against Pracht, to recover upon two promissory notes. Trial at the April term, 1886, and verdict for plaintiff for $ 378.50. New trial denied. Judgment in accordance with the verdict; and that $ 200 of the judgment draw interest from date at the rate of 12 per cent. per annum; that $ 178.50 thereof draw interest at the rate of 7 per cent. per year from date; and that plaintiff recover the costs of suit. The defendant Pracht brings the case here. The material facts are fully stated in the opinion.

Judgment affirmed.

Thos O. Kelley, for plaintiff in error.

Madden Bros., for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action commenced in the district court of Chase county by James McNee against Fred Pracht, on two promissory notes executed to McNee as follows: The first is dated December 10 1877, is for $ 200, due December 10, 1879, drawing interest from date at the rate of twelve per cent. per annum, and is signed by Fred Pracht and Elbert W. Finn; and upon this note are two indorsements, one for $ 22.50, received June 29, 1880, and the other for $ 200, received June 10, 1885. The second note is dated June 10, 1885, is for $ 200, due September 10, 1885, drawing interest from date at the rate of twelve per cent. per annum, and is signed by Fred Pracht. When this suit was commenced is not shown. There is no controversy concerning the second note. It is admitted to be due and unpaid. Neither is there any controversy with respect to the first note and the indorsements thereon, except as follows: The defendant claims that the first note has been wholly paid, and if not paid that it was barred by the five-years statute of limitations when this action was commenced; while the plaintiff claims that no payments have been made on the note except such as are shown by the indorsements thereon, and that such payments were in fact made, and that there still remains due on the note a balance of about $ 185.50. The facts of the case, stated briefly, are substantially as follows: Both notes were executed as they purport to have been. The payment of $ 22.50 was made by Finn on the first note at the date of the indorsement of the same thereon. The payment of $ 200 indorsed on the first note was made by the execution of the second note. All parties understood that the giving of the second note was a payment of $ 200 on the first note, the plaintiff claiming that it was merely a payment of that amount, leaving a balance due on the note, while the defendant claims that it was a full and complete payment of the first note. It is also shown that prior to the execution of this second note, and on May 28, 1885, the defendant, Fred Pracht, sent through the United States mail a postal card directed to James McNee at Cottonwood Falls, Kansas, which postal card reads as follows:

"James McNee, Cottonwood Falls: I will turn you over farmers' notes for the note you hold against me--the Fign note. Let me hear from you. F. PRACHT."

The first note above mentioned was the only note held by the plaintiff in which the defendant had any interest, and was the only Fign note, or Finn note, held by him, and was the note which the evidence shows the defendant had reference to when he sent the postal card. The case was tried before the court and a jury, and the verdict and judgment were in favor of the plaintiff,...