Stone v. Barr

• Decision Date: 08 July 1922
• Docket Number: 23,888
• Citation: 111 Kan. 775,208 P. 624
• Parties: J. E. STONE, Appellant, v. S. H. BARR, as Administrator of the Estate of JOHN TODD, Deceased, Appellee
• Court: Kansas Supreme Court

208 P. 624

111 Kan. 775

J. E. STONE, Appellant, v. S. H. BARR, as Administrator of the Estate of JOHN TODD, Deceased, Appellee

No. 23,888

Supreme Court of Kansas

July 8, 1922

Decided July, 1922.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PLEADINGS--Petition--Allegations of Contemporaneous Oral Contracts Varying Terms of Promissory Notes Properly Stricken Out. It is not error to strike from a petition allegations concerning oral contracts pleaded to avoid the effect of the statute of limitations where evidence cannot be received to prove one of those contracts because it adds to, varies, alters, and contradicts the terms of a contemporaneous or subsequent written instrument concerning which the oral contract was made, and the other contract cannot be proved for the reason that it is required to be in writing by section 23 of the code of civil procedure.

Charles D. Shukers, W. N. Banks, O. L. O'Brien, and W. L. McVey all of Independence, for the appellant.

Charles D. Welch, of Coffeyville, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff, in two counts, sued upon a written guaranty of John Todd, deceased, on two promissory notes executed by the Caney Glass Company, a corporation, one for $ 7,000 and the other for $ 5,000. One note was guaranteed by S. M. Porter, John Todd, H. Bradley, and John Ziegenfuss, and the other one was guaranteed by S. M. Porter, John Todd, J. E. Stone, H. Bradley, and John Ziegenfuss. The plaintiff appeals from an order striking out certain allegations of his petition.

The first count of the petition declared on the $ 7,000 note, and the second count on the $ 5,000 note. The parts struck out of the first count were as follows:

"5. That at the time of the execution and delivery of each of said notes, it was the verbal understanding between plaintiff, said Glass Company, and the said endorsers and guarantors, Porter, Todd, Bradley, and Ziegenfuss, that said funds, the proceeds of said note, should be used by the said corporation for a considerable and indefinite period, and until repayment thereof should be actually demanded by plaintiff.

"6. Plaintiff further states that The Caney Glass Company, a corporation, for whose benefit said note was given in addition to the indebtedness mentioned in this petition, owed a large amount of other debts, partly in open account and partly evidenced by outstanding notes of the company; that on or about the 15th day of September, 1914, the plant belonging to said company at Caney, Kansas, was sold and the proceeds from said sale applied upon the payment of said indebtedness. That after said proceeds had been so applied, there yet remained a large indebtedness against said company in addition to that evidenced by the notes referred to in this petition. That on or about the time of said sale and after it had been determined what the total obligations of said company were, Todd, Porter and Stone entered into a verbal agreement concerning the payment of said indebtedness and also concerning the payment of the indebtedness evidenced in the notes referred to in this petition; that it was mutually agreed at said time by the said John Todd, S. M. Porter and J. E. Stone that the balance of said outstanding indebtedness of the Caney Glass Company above referred to should be taken up and paid as the same should become due and payable and that the said Todd, Porter and Stone would each pay a one-third (1/3) of said remaining outstanding indebtedness. It was also agreed between said parties that the note in favor of J. E. Stone above referred to as exhibit "B" should not be paid until all of said other outstanding indebtedness had been paid; that said note should continue to draw interest at the rate mentioned in said note but that the said J. E. Stone would not demand payment of said note and that said note should not be paid or any part thereof or the interest thereon until all of said other outstanding indebtedness had been paid according to the agreement above referred to. And it was also mutually agreed between said parties that after the other outstanding indebtedness had been taken up and paid, as above set out, that the note of J. E. Stone above referred to would be taken up and paid in full by the said S. M. Porter and John Todd.

"7. Plaintiff further states that the parties to said agreement, to wit: S. M. Porter, John Todd, and J. E. Stone, proceeded to, and did carry out said agreement, in this, to wit, that the said J. E. Stone proceeded to and did pay off upon the other outstanding indebtedness of said company after the time of said agreement about Five Thousand Two Hundred Forty and Forty-one Hundredths ($ 5,240.41) Dollars, and the said S. M. Porter paid thereon about Five Thousand ($ 5,000.00) Dollars and the said John Todd paid thereon about Four Thousand ($ 4,000.00) Dollars, and that all of said indebtedness was cleaned up and the last payment made thereon on or about the 27th day of July, 1918; that in accordance with said agreement the said J. E. Stone did not demand payment of said note, and no part or portion of said note was paid and no payment made thereon.

"8. Plaintiff further states that by reason of the facts above stated there was an understanding between the said J. E Stone, S. M. Porter and John Todd, and there was an assurance given by the said John Todd to the said J. E. Stone that demand should not be made for the payment of said indebtedness, or suit brought thereon until such a time as the mutual accounts of said parties, above referred to, should be settled, and that the said J. E. Stone relied upon such assurance and understanding and did not bring an action on said note, or present the same for...