Stanton v. Edman
| Decision Date | 26 May 1930 |
| Docket Number | 16875 |
| Citation | 28 S.W.2d 425 |
| Parties | STANTON v. EDMAN. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Buchanan County; John D. McNeely, Judge.
“ Not to be officially published.”
Suit by A. H. Stanton against Julia Woodson Edman, administratrix of the estate of Charles R. Woodson, deceased. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
Shultz & Owen, of St. Joseph, for appellant.
Strop & Silverman, of St. Joseph, for respondent.
This is an appeal from a judgment in favor of defendant in the circuit court of Buchanan county, Mo. The suit was instituted in the probate court of said county and is based upon a claim against the estate of C. R. Woodson, deceased. The said claim is as follows:
"Be it remembered that on the 5th day of May 1928, the following proceedings were had and done:
Estate of C. R. Woodson, deceased.
Comes now A. H. Stanton and files demand against said estate founded on a note, dated May 16th, 1924, signed C. M. Thomson and H. K. Thomson, with affidavit and waiver of notice thereon.
Which said claim is as follows:
That said indebtedness was created by deceased agreeing to pay a note executed by C. M. and H. K. Thomson to A. H. Stanton which note and agreement is attached hereto and made a part of this petition.
That there is due on said note and unpaid the sum of $120.00 and interest to date."
The note referred to in the claim is as follows:
"$220.00 Agency, Mo., May 6, 1924.
Ninety days after date, for value received we promise to pay to the order of A. H. Stanton, the sum of $220 and 00 cents, at Agency, Missouri. With interest after date at the rate of eight per cent per annum and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of ten per cent on the amount of this note as attorney’s fees.
C. M. Thomson.
H. K. Thomson.
Due Aug. 16, 1924.
Aug. 8-29-25 Paid to A. H. Stanton by C. R. Woodson, $50.00."
The agreement referred to consists of a letter, also attached to the claim, which reads as follows:
Agency, Mo.
Dear Sir:
I herewith hand you check for $50.00, which you will credit on the Thomson Brothers’ note for $220.00. I will see you about the rest when I come down.
The claim was verified by plaintiff personally. At the hearing in the probate court, plaintiff was present and was represented by his attorney. The estate was represented by the administratrix thereof and by counsel. After a hearing the court disallowed the claim. whereupon claimant appealed to the circuit court of Buchanan county. Thereafter and on October 3, 1928, during the October term of said court, plaintiff filed his amended petition in which the note executed by C. M. and H. K. Thomson, brothers, is described and in which he alleges that to secure the same, Thomson brothers executed a chattel mortgage on crops situated on land in Buchanan county, Mo.; that deceased, C. R. Woodson, held a second deed of trust on the land upon which said crops were situated; that there was a default in the payment of said note; that under the terms of said mortgage plaintiff was entitled to the possession and sale of said crops; "that deceased proposed to plaintiff that if he would refrain from exercising his rights under the mortgage and take said crops and sell the same to satisfy his said note, thereby permitting the said Thomson brothers to use said crops and the proceeds thereof, to pay the interest on the first deed of trust on said land, and thereby protect his second deed of trust, that in consideration of the proposed agreement, he would pay the plaintiff the amount due on said note"; that plaintiff accepted said offer and proposition and did not take said crops under the mortgage as requested by deceased, and was thereby deprived of the means of collecting said note; that pursuant to said agreement deceased made on said note two payments of $50 each which were credited thereon in favor of said estate; that plaintiff performed his part of the agreement and deceased failed and refused to perform his part thereof, and that the administratrix of the estate of deceased failed and refused to perform the agreement on behalf of the deceased; that the said agreement was oral, and that the same was confirmed by a letter written by deceased on November 1, 1924, to plaintiff, which said letter is attached to and made a part of the petition; that there is now due and unpaid on said note $120 and interest to date, for which judgment is prayed.
On the same date defendant filed a motion to strike the amended petition upon the grounds that it is a departure from the statement filed in the probate court upon which the action was tried, and that said amended petition states another and different cause of action from that contained in the said original statement. Thereafter and on May 11th, and at the May term, 1929, of said court, the motion to strike was sustained, and the cause went to trial to a jury upon the record as certified from the probate court. There was a verdict and judgment for defendant. A motion for a new trial was overruled, and plaintiff has appealed.
There are two assignments of error: (1) The court erred in striking plaintiff’s amended petition, and (2) in refusing to permit plaintiff to prove facts alleged in said amended petition. It is obvious that if the court properly sustained the motion to strike the amended petition, there could be no error...
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