The Deerfield State Bank v. Coerber

• Decision Date: 12 May 1923
• Docket Number: 24,453
• Citation: 113 Kan. 498,215 P. 285
• Parties: THE DEERFIELD STATE BANK, Appellee, v. W. O. COERBER, Appellant
• Court: Kansas Supreme Court

215 P. 285

113 Kan. 498

THE DEERFIELD STATE BANK, Appellee, v. W. O. COERBER, Appellant

No. 24,453

Supreme Court of Kansas

May 12, 1923

Decided January, 1923.

Appeal from Kearny district court; CHARLES E. VANCE, judge.

Judgment modified.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROMISSORY NOTE--Not Varied by Previous Oral Agreement. An oral agreement by the payee of a note made before its execution that the maker shall not be required to pay it until such time as should be convenient for him is unavailable to defeat an action brought upon it at its maturity.

2. SAME--Note May Be Extended by Oral Agreement upon Valid Consideration. An oral agreement between the parties to a note extending the time of its maturity is valid, the promise on the part of the maker to continue the payment of interest until the new date fixed being a sufficient consideration for the promise of the payee to forbear suit for the intervening period. The answer is held by a liberal construction to set out such an agreement.

3. SAME--Cross-demand--Damages Growing Out of a Wrongful Attachment. Under the present code defining a set-off as a cause of action for the recovery of money, a claim for damages on account of a wrongful attachment may be used as a cross-demand in the action in which the attachment order was issued, but only where it is set out in a supplemental answer filed by leave of court, inasmuch as it is only by such permission that matters occurring since the beginning of the action can be effectively pleaded.

4. SAME--Verified General Denial--Issues. In an action on a note by the payee a verified general denial does not put in issue the plaintiff's ownership of the note or the amount due upon it.

Fred J Evans, Robert S. Field, and R. W. Hoskinson, all of Garden City, for the appellant.

William Easton Hutchison, C. R. Hope, and A. M. Fleming, all of Garden City, for the appellee.

OPINION

MASON, J.:

The Deerfield State Bank sued W. O. Coerber upon a note. In his answer he undertook to set out two defenses--an extension of time of payment and a cross-demand for damages for a wrongful attachment in the same action. A reply was filed consisting of a general denial. Upon the case being called for trial the plaintiff moved for judgment in its favor upon the pleadings. The motion was sustained and the defendant appeals.

1. The defendant pleaded that before he executed the note to the bank it promised that he should not be required to pay the indebtedness for which it was given until such time as was convenient for him, and this promise is relied upon as a defense. No suggestion is made that the promise was in writing, and as an oral agreement it is of no avail against the express terms of the note subsequently signed, by which the maker contracted to pay at a specified time. ( Bank v. Staab, 102 Kan. 369, 171 P. 3; 8 C. J. 740.)

2. The answer also contained allegations that on October 18, 1921, the defendant paid the interest on the note to that date, and also paid the plaintiff 60 cents for revenue stamps to be attached to a renewal note to mature in 90 days, and 35 cents as a recording fee for a new mortgage securing it; that the plaintiff agreed to renew the note as soon as the papers could be prepared; that the defendant later called at the bank to execute the new papers but they had not been prepared; and that by reason of the agreement referred to the "indebtedness was extended for a period of ninety days from October 18, 1921, and . . . the same . . . was not due at the time of filing this action."

The answer, having been challenged only by a motion for judgment made after the case had been called for trial, must be interpreted liberally in favor of the pleader. So construed it sufficiently alleges not merely that the parties agreed that the note should be extended, but that an extension of time was actually accomplished by the oral agreement, the purpose of the proposed execution of new papers being merely to make the record conform to the fact. Apart from the payment of the money for the revenue...