State Exchange Bank v. Naylor

• Decision Date: 12 December 1936
• Docket Number: 33030.
• Citation: 62 P.2d 887,144 Kan. 703
• Parties: STATE EXCHANGE BANK v. NAYLOR et al.
• Court: Kansas Supreme Court

62 P.2d 887

144 Kan. 703

STATE EXCHANGE BANK v. NAYLOR et al.

No. 33030.

Supreme Court of Kansas

December 12, 1936

Syllabus by the Court.

Evidence held to establish that note executed by husband and wife was supported by consideration.

Evidence held to establish that both impliedly and by ratification husband had authority to sign wife's name to note.

Even if maker executed note to take up his son's indebtedness maker's estate would be bound absolutely where maker repeatedly paid interest on his successive note and amount of indebtedness represented thereby varied from time to time.

In an action to recover on promissory notes executed in the names of a husband and wife as makers, the record examined and held the defense of want of consideration was not sustained; the evidence was sufficient to show that both impliedly and by ratification the husband had authority to sign his wife's name to the notes; and held also that the other objections to the judgment for plaintiff are not sustained.

Appeal from District Court, Woodson County; A. T. Ayres, Judge pro tem.

Action by the State Exchange Bank against M. C. Naylor and W. W Naylor, administrator of the estate of E. W. Naylor. During the pendency of the action, M. C. Naylor died, and the action was revived as to deceased in the name of W. W. Naylor as administrator of the estate of M. C. Naylor. From an adverse judgment, defendant W. W. Naylor as administrator appeals.

Stanley E. Toland, of Iola, and L. T. Cannon, of Humboldt, for appellant.

G. H Lamb, W. E. Hogueland, and E. E. Lamb, all of Yates Center and L. H. Hannen, and B. A. Kingsbury, both of Burlington, for appellee.

DAWSON Justice.

This was an action to recover on two notes and the interest due thereon--the first for $500, dated July 5, 1932, and due in 180 days; and the second for $3,000, dated November 13, 1932, and due in 90 days. The makers of these notes were E. W. Naylor and M. C. Naylor, husband and wife, and the payee was the State Exchange Bank, of Yates Center, plaintiff in this action.

Plaintiff's second amended petition contained the usual recitals pertinent to an action on promissory notes, and alleged that E. W. Naylor, one of the makers, had died since its execution and that his son W. W. Naylor was the administrator of his estate. The petition also contained certain allegations touching the making of a statement of the makers' financial condition which in whole or in part was stricken from the petition by order of court. Judgment for the face amounts of the notes and interest was prayed for.

The administrator's answer alleged that the note sued on (which one was not indicated) had been signed by E. W. Naylor for the accommodation of the bank and without consideration, and that he had signed and delivered it "*** with the understanding and agreement then and there made that he would not ever be called upon to pay it, and that in the course of time it would be cancelled and returned to him. That said note was renewed one or more times, the exact number being unknown, by this defendant under the same terms and conditions and under like promises and agreements, and at no time did said E. W. Naylor receive any consideration for the said renewal notes or either of them."

On her own behalf the defendant M. C. Naylor answered with a general denial and specifically denied that she had ever made, executed, or delivered to plaintiff the notes sued on. She further alleged that the notes were given without her knowledge, authority, or consent, and were without any consideration to her. This answer was verified.

After issues were thus joined, the deposition of the defendant M. C. Naylor was taken by her counsel. She died before the trial, but revivor was ordered, and her son W. W. Naylor was appointed and qualified as her administrator and he adopted her answer as his own.

The cause was tried before a jury. Evidence was adduced at length. The fact that both signatures on the notes were in the handwriting of E. W. Naylor was not in dispute. The trial court directed a verdict against the administrator of E. W. Naylor's estate, and submitted to the jury the disputed issues of fact raised by the answer on behalf of M. C. Naylor and the administrator of her estate.

The jury returned a verdict in favor of the bank for the full amount prayed for.

W. W. Naylor appeals in his dual capacity of administrator of his father's estate and as administrator of his mother's estate.

Noting the objections to the judgment in the order they are argued in appellant's brief, it is first contended that the demurrer lodged against plaintiff's evidence in behalf of Mrs. M. C. Naylor's estate should have been sustained. It is confidently asserted that there was no evidence that M. C Naylor ever received any money or other consideration on the alleged indebtedness represented by the notes nor was it shown that she ever paid anything on the principal or interest in respect thereto. What the evidence did show was that each of the makers, husband and wife, were the owners, individually, of certain tracts of hay land, and that the harvesting and marketing of the hay on these lands was the principal business of the husband, E. W. Naylor, for several years prior to the dates of the notes sued on. It was also shown that the principal source of income of both makers was the proceeds of the sales of hay from these lands. It was shown that the money to meet the expenses of harvesting and marketing the hay crop was usually furnished by the plaintiff, and that the amount of indebtedness represented by notes signed by E. W. Naylor on his own behalf and in behalf of his wife varied from time to time, rising on occasion as high as $5,000 and falling as low as $2,600; and on one occasion,...