Rogers v. Hodgson

• Decision Date: 09 May 1891
• Citation: 26 P. 732,46 Kan. 276
• Parties: ROGERS v. HODGSON et al.[1]
• Court: Kansas Supreme Court

26 P. 732

46 Kan. 276

ROGERS v. HODGSON et al.^[1]

Supreme Court of Kansas

May 9, 1891

Syllabus

1. The filing of amendatory and supplemental pleadings rests largely within the discretion of the trial court, and, unless there is a clear abuse of that discretion, its ruling will not be reversed.

2. In case of a demurrer to plaintiff’s evidence the court cannot weigh conflicting testimony, but must view that which is given in the light most favorable to the plaintiff, and allow all reasonable inferences in his favor and unless all that is offered fails to establish his case or some material fact in issue in the case, the demurrer should be overruled.

3. The evidence in the case examined, and held to be sufficient as against an attack made by a demurrer.

Error from district court, Harvey county; L. HOUK, Judge.

Brown & Kline, for plaintiff in error.

Bowman & Bucher, for defendant in error.

OPINION

JOHNSTON, J.

On May 12, 1888, G. W. Rogers brought an action against R. W. Hodgson, M. S. Hodgson, Cynthia A. Shafer, and H. Shafer, to recover upon a note, and to foreclose a mortgage which was given to secure the same. The note was for $2,500, and was executed on May 1, 1886, by Hodgson and wife to Smedley Darlington, due in five years, with 7 per cent. interest, payable semi-annually, according to the terms of 10 semi-annual coupons of $87.50 each, attached to the note, due on the 1st days of May and November of each year. He alleged that Smedley Darlington sold and assigned the note and mortgage to the plaintiff, who is now the owner and holder of the same. It is further averred that the mortgage given to secure the payment of the note provided that, if any coupon remained due and unpaid more than 30 days after it became due, the whole debt should then become due, and bear 12 per cent. interest from date. The plaintiff further says that the interest coupons maturing November 1, 1886, and May 1, 1887, were paid, but that the coupon maturing November 1, 1887, was not paid at the time the same became due, nor for more than 30 days thereafter, and was still due and unpaid; and that the interest coupon maturing May 1, 1888, was past due and unpaid. There is a further allegation that the conditions of the mortgage were broken by the failure to pay the taxes on the premises and to keep the property insured. On account of these defaults the plaintiff alleges that he has elected to exercise his option to declare the whole sum due and payable, according to the terms of the note and mortgage. He asks for a personal judgment against the defendants Hodgson and wife for the sum of $2,500, with interest thereon at the rate of 12 per cent. per annum from May 1, 1886, less the two interest coupons which have been paid as above stated; and also for a decree foreclosing the mortgage.

The defendants filed a joint answer, admitting the execution of the note and mortgage; denying the assignment of the same by Darlington to the plaintiff; alleging that the coupon due November 1, 1887, was paid to Darlington before the pretended assignment, and alleging an offer to pay the coupon of May 1 1888, within 30 days after the same became due, at the place where it was made payable, and that within the same time they offered to pay the last named coupon to plaintiff, but that it was refused; alleging that the agent of Darlington, who negotiated the loan, agreed that no insurance need be taken out on the premises, and waived that condition of the mortgage, and that W. E. Brown, who purchased the premises from Hodgson on April 23, 1887, assumed the payment of the mortgage note and coupons mentioned, but that afterwards he combined with the defendant, J. T. Axtell, and one A. B. Gilbert to injure and defraud the defendant, and in pursuance thereof they obtained possession of the note and mortgage from Darlington upon the pretense of the payment of the same by said Brown, and that they did not in any sense obtain an assignment from Darlington to Rogers; that subsequently W. E. Brown entered into an agreement to reconvey the premises to Hodgson, free and clear of all incumbrances, except that Hodgson was to pay the note and the balance of the unmatured coupons as they became due, but with the distinct agreement that no forfeiture of any of the terms and conditions of the note and mortgage had occurred. It is further alleged that no part of the note is due, nor are any of the coupons due except the one maturing May 1, 1888, and that payment of that had been tendered. On December 21, 1888, the plaintiff asked leave to file a supplemental petition, alleging in substance that since the commencement of this action the defendant had allowed the interest coupon due May 1, 1888, to remain unpaid more than 30 days after its maturity, and had failed to pay the taxes which were due December 20, 1888, and had allowed the interest coupon due November 1, 1888, to remain unpaid for more than 30 days after its maturity, and had still allowed the buildings on the premises to remain uninsured; and that for these reasons, in addition to those set up in the original petition, the whole amount of the debt had become due. The court denied the application to file the supplemental petition, and upon the trial which was afterwards had a demurrer was sustained by the court to the plaintiff’s evidence. The plaintiff excepted to the rulings of the court in denying the application to file the supplemental petition, and in sustaining the demurrer to the plaintiff’s evidence. By the supplemental petition offered the plaintiff undertook to allege such defaults as would entitle him to recover 12 per cent. interest from the date of the mortgage, instead of the 7 per cent. rate stipulated therein. By the conditions of the mortgage a default in the payment of any interest for more than 30 days after the same became due gave the holder the option to declare the whole amount due, and to collect interest thereon at 12 per cent. from the date of...