Ryan v. Tudor

• Decision Date: 07 February 1884
• Citation: 31 Kan. 366,2 P. 797
• Parties: ALEXANDER RYAN v. WM. A. TUDOR, et al
• Court: Kansas Supreme Court

2 P. 797

31 Kan. 366

ALEXANDER RYAN v. WM. A. TUDOR, et al

Supreme Court of Kansas

February 7, 1884

Error from Clay District Court.

ACTION by Ryan against Tudor and wife, upon four promissory notes amounting to $ 900, with interest, and to foreclose a mortgage given to secure their payment. Trial at the May Term, 1883, and judgment for defendants. Ryan brings the case here. The opinion states the facts.

Judgment reversed and case remanded.

Anthony & Kellogg, for plaintiff in error.

Harkness & Godard, for defendants in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action upon four notes and a mortgage given to secure their payment, commenced in the district court of Clay county on February 17, 1882. The mortgage was executed May 7, 1876. On the 20th of March, and before answering, the defendants filed their motion to require the plaintiff's attorneys to produce the authority under which they appeared for the plaintiff. Affidavits were read on the hearing of this motion; the court found that the attorneys had not sufficient authority, and continued the case to the next term. At the next term, for some reason not disclosed by the record, the defendants renewed the same motion, the same showing was made, and exactly the opposite ruling made by the court. Thereupon the defendants answered. The case went to trial before a jury, and during the trial an amended answer was filed, tendering two defenses: First, the death of the plaintiff prior to the commencement of the action; and second, that the action, was prosecuted without authority from the payee of the notes and plaintiff in the action. These issues, involving of course no question on the merits seemed to have been the only matters presented and considered on the trial. The jury returned a verdict for the defendants, and judgment was rendered in form that the action was prosecuted without authority, and that the plaintiff pay the costs. Upon the trial these facts appeared: In the spring of 1876, Ryan, the plaintiff, was the owner of the tract of land mortgaged. He was then fifty-two or fifty-three years of age, and unmarried. He had lived in Clay county some four or five years. He sold the land to defendants, and took the mortgage in controversy for part of the purchase-money. He left the notes and mortgage, together with some other notes, with one David Greep as his agent, with instructions to collect the moneys thereon and send them to Daniel Fish, his brother-in-law, in New Hampshire. Some of the other notes were collected by Greep, and the proceeds forwarded to Fish as directed. Ryan, in June of that year, went to New Hampshire to visit his relatives. He stayed there two or three weeks, and then went away saying he would return in a month. Nothing has since been heard of him. He was in good health and of sound mind, but rather eccentric in his disposition. Before he left Kansas he told his agent that he did not know where he should go, that he might go to California or to the Black Hills, and that when he got settled he would write. But the agent never heard from him. The court instructed the jury that there was no testimony showing the death of the plaintiff, or raising the presumption of his death; that where notes and accounts are left with an agent, with instructions to collect, the agent has the implied power to sue and to employ attorneys to collect the debts by suit. The jury retired, and returned the verdict for defendants, as heretofore stated.

Obviously the jury disregarded the court's instructions; for that Greep had instructions to collect and remit to Daniel Fish was undisputed, and the court plainly charged the jury that authority to collect implies authority to sue and employ attorneys therefor. And in so many words the court also charged the jury that they must regard the plaintiff as still living. Now whether the court was right or not in its instructions, it was the duty of the jury to accept them as correct, and be guided by them; and upon a failure so to do the verdict should be set aside. (Irwin v. Thompson, 27 Kan. 643; Howell v. Pugh, 25 id. 96.)

Again, the court was right when it instructed that authority to collect implies and includes authority to use the means ordinarily employed for the purpose of accomplishing a collection, and that among these are the retaining of counsel and the institution of suit. Indeed, that is generally the only way in which collection can be compelled, and an agent whose duty it is to collect, has certainly the implied power to resort to the ordinary and generally the only means of compelling collection. Authority to collect is broader and more comprehensive than authority to receive payment. (1 Wait's Actions and Defenses, p. 221, and cases cited.)

In reference to the death of Ryan, it is clear that...