The Manchester State Bank v. The Elmo Farmers Union Cooperative Business Association

• Decision Date: 05 December 1925
• Docket Number: 26,269
• Citation: 119 Kan. 835,241 P. 118
• Parties: THE MANCHESTER STATE BANK, Appellee, v. THE ELMO FARMERS UNION COOPERATIVE BUSINESS ASSOCIATION, Appellant
• Court: Kansas Supreme Court

241 P. 118

119 Kan. 835

THE MANCHESTER STATE BANK, Appellee, v. THE ELMO FARMERS UNION COOPERATIVE BUSINESS ASSOCIATION, Appellant

No. 26,269

Supreme Court of Kansas

December 5, 1925

Decided July, 1925.

Appeal from Dickinson district court; CASSIUS M. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

EVIDENCE--Parol Evidence Affecting Mortgage--Permission to Sell. The proceedings considered in an action by a mortgagee of wheat to recover its value from a purchaser from the mortgagor who claimed he had oral permission to sell, and held, the conversation relating to permission to sell occurred as part of the transaction embracing the giving of the mortgage, and was not admissible in evidence to qualify the lien created by the written instrument.

S. S Smith, of Abilene, for the appellant.

Arthur Hurd, of Abilene, for the appellee.

OPINION

BURCH, J.:

The action was one by the mortgagee of wheat to recover its value from a purchaser from the mortgagor. The defense was, the mortgagee gave the mortgagor permission to sell, and consequently title passed free from lien of the mortgage. The court instructed the jury to disregard the evidence offered to sustain the defense. The result was, plaintiff recovered, and the question is whether the instruction was erroneous.

On February 21, 1923, the cashier of the bank went to the home of James Monasmith, near Elmo, and procured from Monasmith an interest-bearing note to the bank for $ 1,235, due August 21, 1923, and a chattel mortgage securing the note. The mortgage was in the usual form, covered live stock, farm implements, and growing wheat, and was signed by Monasmith, his wife, and his son. The course of events appears to have been, discussion of the business in hand, preparation and signing of the note and mortgage, and then some talk about privilege to sell some of the wheat to pay expenses. Monasmith testified tat, after the note and mortgage were given, signed by himself, his son Oliver, and his wife, the cashier told him to go ahead and sell the wheat and pay expenses. Mrs. Monasmith testified as follows:

"He [the cashier] told my husband, after we had signed the note and mortgage, that we could sell the wheat and pay his expenses out of it. We asked him, after the note and mortgage was signed and made, if we could sell it, and he said that we could. Mr. Wright [the cashier] was at our place probably half an hour after the...