Rickman v. Miller

• Citation: 39 Kan. 362,18 P. 304
• Parties: CHARLES RICKMAN et al. v. C. R. MILLER
• Decision Date: 04 May 1888
• Court: Kansas Supreme Court

18 P. 304

39 Kan. 362

CHARLES RICKMAN et al. v. C. R. MILLER

Supreme Court of Kansas

May 4, 1888

Error from Kingman District Court.

THE opinion states the facts. Judgment for the plaintiff Miller at the March term, 1886. The defendants Rickman and Arnold bring the case here.

Judgment affirmed.

Gillett & Whitelaw, for plaintiffs in error.

L. M Conkling & Son, for defendant in error.

HOLT C. All Justices concurring.

OPINION

HOLT, C.

Defendant in error, as plaintiff, brought his action against defendants, and recovered judgment for $ 247.70; to reverse said judgment, they bring the case here for review. The cause was submitted upon an agreed statement of facts, from which it appears that S. H. Priddy owned a quarter-section of land in Kingman county, which he sold to defendants for $ 1,600. Priddy and wife covenanted in their deed that the land was free and unincumbered, except by a mortgage for $ 700 and interest, and also a mortgage for $ 276 and interest, and a judgment for $ 130. There was, however, no mortgage upon the land at the time of the sale, but there was a chattel mortgage executed by Priddy to the plaintiff for $ 276, to secure a note due him from Priddy for that amount, but it was no lien upon the land unless the stipulation in the deed made it one. The balance between the amount named in the deed, and the several sums of money mentioned as liens upon the land, was paid in cash by defendants to Priddy. Shortly after the sale of the land, Aultman, Miller & Co., creditors of Priddy, served a garnishee notice upon the defendants, and in answer thereto they stated they were indebted to Priddy in the amount of $ 276 and interest; but afterward, in the same proceeding, they asked leave to correct their answer in order to show the real facts of their indebtedness, if any, to Priddy, and the obligations assumed by them for the payment of this note and mortgage. Leave being obtained, they then answered, setting up the same state of facts as appears in this statement of the case.

The plaintiff avers in his petition that, at the time of the negotiations for the sale of the land, Priddy notified the defendants of the existence of said note and mortgage, and stipulated that said defendants should assume the payment thereof. To this defendants assented, and agreed with Priddy that they would assume and pay said note and mortgage as a part of the consideration for the land. The agreed statement of facts provides that the averments of the petition should be taken as true; it is also agreed that up to the time of the service of the garnishee process upon defendants, plaintiff did not know of the contract between Priddy and defendants concerning the payment of the note.

It is not questioned that Miller could have brought his action against defendants, and maintained it, if Aultman, Miller & Co. had not garnished them. (Anthony v. Herman, 14 Kan. 494, 495; Strong v. Marcy, 33 id. 109; Brenner v. Luth, 28 id. 583.) It will also be presumed that as the contract gave Miller additional security for the payment of his debt, and being entirely in his favor, that he would have accepted it.

The plaintiff claims, under the authority of Center v McQuesten, 18 Kan. 476, that the defendants were simply agents of Priddy to pay this amount to Miller, and until they performed the duties of their agency the money in their hands was the property of Priddy, and not of Miller. If their contention was correct, then Aultman, Miller & Co., and not the plaintiff, would be entitled to the...