The Peru Plow and Wheel Company v. Ward
| Court | Court of Appeals of Kansas |
| Writing for the Court | GARVER, J.: |
| Citation | 41 P. 64,1 Kan.App. 6 |
| Decision Date | 01 May 1895 |
| Parties | THE PERU PLOW AND WHEEL COMPANY v. R. B. WARD |
41 P. 64
1 Kan.App. 6
THE PERU PLOW AND WHEEL COMPANY
v.
R. B. WARD
Court of Appeals of Kansas, Northern Department, Central Division
May 1, 1895
Error from district court, Republic county; F. W. Sturges, Judge.
Opinion Filed July 6, 1895.
MEMORANDUM.--Error from Republic district court; F. W. STURGES, judge. Action by the Peru Plow and Wheel Company against R. B. Ward. Judgment for defendant. Plaintiff brings the case here. Affirmed. The material facts are stated in the opinion herein, filed July 6, 1895.
Judgment affirmed.
Noble & Hogin, for plaintiff in error.
Jay F. Close, and N. T. Van Natta, for defendant in error.
GARVER, J. All the Judges concurring.
OPINION
GARVER, J.:
Under date of February 1, 1887, R. B. Ward became security for M. W. Ward and Thomas Ward for the payment of an indebtedness of $ 1,654.38, to the Peru Plow and Wheel Company, and as security signed three notes for $ 551.46 each, due and payable, unconditionally, in one, two, and three years, respectively, after date. As additional security, and before accepting said notes, said company demanded and received from M. W. Ward a mortgage [1 Kan.App. 7] on certain real estate in the town of Scandia, the mortgage stating that it was given to secure said notes, and also contained the condition: "If said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due; and if the taxes and assessments aforesaid (taxes and assessments levied upon said real estate) are not paid when the same are by law made due and payable, then, and upon default of these provisions and covenants, or any or either of them, the whole of said sum and sums, and interest thereon, shall by these presents become due and payable." The surety did not assent to this change of the contract, and defends on that ground. This presents the single question: Do the conditions of the mortgage effect such a change of the contract as will release the surety? We think they do. By the terms of the notes, neither the principals nor the surety could be called upon for payment of the second and third notes in less than two and three years, respectively, from their dates. By the terms of the mortgage, the failure to pay the first note, when due, or the failure to pay the taxes which might be assessed against the mortgaged property, caused all three notes to become at once due and payable. (Stanclift v. Norton, 11 Kan. 218.) Even though it might be said that such would not be the legal effect of the contract contained in the mortgage as to the surety, he not being a party thereto, yet it would be placing upon him an obligation...
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First Nat. Bank of Anthony v. Dunning, No. 68362
...relatively few Kansas cases have been decided using this theory. The Court of Appeals enunciated the standard in Plow Co. v. Ward, 1 Kan.App. 6, 41 P. 64 (1895). In that case, the surety was discharged because a three-[18 Kan.App.2d 521] year payment plan was modified to require payment of ......
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Schiltz v. Wokal, 35372.
...cite Plow & Wheel Co. v. Ward, 6 Kan.App. 289, 51 P. 805, as sustaining their view. That was a sequel to a case of the same name in 1 Kan. App. 6, 41 P. 64. A consideration of those two opinions discloses what was said there has no bearing here. Under the authorities this rule appears t......
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Bright v. Mack, 6 Div. 353
...an action is brought within two years against the principals and the surety on the three notes." Peru Plow & W. Co. v. Ward, 1 Kan.App. 6, 41 P. Abundant authority is quoted in the above case to sustain the holding, and we know of none to the contrary. We take from the opinion in t......
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First Nat. Bank of Anthony v. Dunning, No. 68362
...relatively few Kansas cases have been decided using this theory. The Court of Appeals enunciated the standard in Plow Co. v. Ward, 1 Kan.App. 6, 41 P. 64 (1895). In that case, the surety was discharged because a three-[18 Kan.App.2d 521] year payment plan was modified to require payment of ......
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Schiltz v. Wokal, 35372.
...cite Plow & Wheel Co. v. Ward, 6 Kan.App. 289, 51 P. 805, as sustaining their view. That was a sequel to a case of the same name in 1 Kan. App. 6, 41 P. 64. A consideration of those two opinions discloses what was said there has no bearing here. Under the authorities this rule appears t......
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Bright v. Mack, 6 Div. 353
...an action is brought within two years against the principals and the surety on the three notes." Peru Plow & W. Co. v. Ward, 1 Kan.App. 6, 41 P. Abundant authority is quoted in the above case to sustain the holding, and we know of none to the contrary. We take from the opinion in t......