Stevens v. Clara E. Inch

• Decision Date: 10 June 1916
• Docket Number: 20,211
• Parties: GUSTA STEVENS, Appellant, v. CLARA E. INCH, as Executrix, etc., Appellee
• Court: Kansas Supreme Court

158 P. 43

98 Kan. 306

GUSTA STEVENS, Appellant, v. CLARA E. INCH, as Executrix, etc., Appellee

No. 20,211

Supreme Court of Kansas

June 10, 1916

Decided, January, 1916.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

PROMISSORY NOTE--Oral Agreement That Note Was Not to be Paid--Such Agreement Void. The plaintiff sold her interest in a failing mercantile business to her partner who was without funds, but who hoped to save the business and pay the plaintiff $ 1000 in three years. The purchaser offered to give a note for the amount but the plaintiff's agent told her if she did so her commercial rating would be affected, she would have no credit, and her creditors would throw her into bankruptcy. To avoid this the purchaser's mother and brother signed the note under an oral agreement that it was a mere form, that the debt would be considered the debt of the purchaser, that she could pay it out of the business, and that if she were unable to do so the makers would not be called on to pay. Held, the note was not unenforceable because of fraud and the written instrument was not impeachable by the contradictory oral agreement.

Nelson Case, of Oswego, for the appellant.

E. L. Burton, George F. Burton, and J. W. Iden, all of Parsons, for the appellee.

OPINION

BURCH, J.

E. T Inch and Laura B. Inch gave their promissory note to the plaintiff for $ 1000. On the death of E. T. Inch the note was presented as a demand against the estate. An appeal was taken from the judgment of the probate court. In the district court the judgment and verdict were against the plaintiff and she appeals. The plaintiff and Gwendola Inch were partners in mercantile business. The plaintiff's interests were looked after by her husband, W. H. Stevens, and the business was conducted by Miss Inch. The business was not prosperous and Miss Inch went to Kansas City and talked to some of the firm's creditors. They complained of W. H. Stevens and told her they would extend her credit if she desired to go ahead with the business, but would not do so while Stevens was connected with it. This led to negotiations for a sale of the plaintiff's interest to Miss Inch. Stevens conducted the negotiations for his wife. Miss Inch had no funds with which to make the purchase, but hoped she might be able to save the business and pay the plaintiff $ 1000 in three years. She offered to give a note to the plaintiff for that sum, but Stevens told her if she gave a note her commercial rating would be affected, she would have no credit and her creditors would throw her into bankruptcy. He proposed that Miss Inch's mother and brother, Laura B. Inch and E. T. Inch, give a note for $ 1000 payable in three years, which was done. He stated that the note was a mere form and agreed with the makers that the debt would be considered the debt of Miss Inch, that she could pay it out of the business of the store, and that if she were unable to do so the makers would never be asked to pay the note. After the note was signed the plaintiff executed and delivered to Miss Inch a bill of sale of the stock and fixtures. The fixtures were worth about $ 1000. The...