Union Stove & MacHine Works v. Caswell

Decision Date07 May 1892
Citation29 P. 1072,48 Kan. 689
CourtKansas Supreme Court
PartiesTHE UNION STOVE & MACHINE WORKS v. J. A CASWELL et al

Error from Reno District Court.

ACTION by Smedley Darlington against John D. Caswell, Sarah J Caswell, his wife, and the Union Stove & Machine Works on a note and real-estate mortgage. The defendant company claimed a judgment lien on the mortgaged lands. On the latter claim there was a verdict and judgment for the Caswells, and the defendant company brings error.

Judgment affirmed.

R. F McGrew, for plaintiff in error.

Charles H. Apt, and Bowman & Bucher, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was originally an ordinary action upon a promissory note and a real-estate mortgage, brought in the district court of Harvey county by Smedley Darlington, the payee and mortgagee, against John D. Caswell and Sarah J. Caswell, husband and wife, the payers and mortgagors, to recover the sum of $ 866.50 and interest. The plaintiff also made the Union Stove & Machine Works, a corporation of Leavenworth, Kan., a party defendant. As the plaintiff's claim seems to have been admitted by all the parties, and no claim of error is assigned as against him, it will not be necessary to again mention his name. The Union Stove & Machine Works answered, setting forth among other things a cause of action against John D. Caswell for $ 807.82, and to enforce an alleged lien upon the real estate in question, subject, however, to the plaintiff's lien, which cause of action so set forth by the Union Stove & Machine Works was founded upon an alleged judgment rendered in its favor and against Caswell on December 8, 1886, in the district court of Pratt county, for the sum of $ 963.99, and a transcript thereof filed in the office of the clerk of the district court of Harvey county on December 20, 1886, upon which judgment a payment was admitted to have been made of $ 214. Among other allegations contained in this answer are the following:

"That there was paid on said judgment the sum of $ 214 on the 8th day of June, 1887; that there is still due and unpaid on said judgment the sum of $ 807.82, after allowing all credits on the same."

The defendants, the Caswells, replied to this answer, admitting the judgment, but alleging that it had been paid and satisfied in the following manner, to wit:

"Said John D. Caswell and Sarah J. Caswell further allege, that since the rendition of said judgment, and on December 12, 1886, one William Fisher, being then and there indebted to said Caswell in a sum greater than the amount of said judgment, assumed the payment of the same, and the said Union Stove & Machine Works took and accepted the said William Fisher therefor in full payment and satisfaction of said judgment, taking from the said William Fisher a note for the same secured by both real and chattel mortgage, and that said Union Stove & Machine Works has since foreclosed said mortgage by an action of replevin in the district court of Pratt county, Kansas; that by reason of the premises aforesaid said judgment has been fully satisfied, and said Caswells released and relieved from the payment of the same."

The defendants, the Caswells, with leave of court filed the following amendment to their reply, to wit:

"That said indebtedness of said William Fisher to said J. D. Caswell arose in this manner: That on or about November 27, 1886, said J. D. Caswell sold and conveyed his stock of merchandise and business house and lot in Saratoga, Pratt county, Kansas, to one William Eastland, who, as a part consideration therefor, assumed and promised to pay a note of the said J. D. Caswell to the Union Stove & Machine Works, which note was secured by a mortgage upon the business house and lot aforesaid, and also by a chattel mortgage upon the heating stoves of the stock of merchandise aforesaid; that afterwards, and on or about December 12, 1886, said William Eastland sold and conveyed said stock of merchandise to said William Fisher, and said business house and lot to Bertha Fisher, the wife of said William Fisher, subject, however, to the incumbrances placed on the same by the said J. D. Caswell to the Union Stove & Machine Works as aforesaid; and as a part of the consideration for the sale and transfer of said business house and lot and the stock of merchandise, the said William Fisher assumed the obligation of the said William Eastland as aforesaid, and promised and agreed to pay the indebtedness of the said J. D. Caswell to said Union Stove & Machine Works as aforesaid."

The Union Stove & Machine Works replied to the Caswells' reply by filing a general denial. Afterward the case was taken on a change of venue to the district court of Reno county, where it was tried upon the foregoing pleadings, and as between the Union Stove & Machine Works and the Caswells before the court and a jury, and the jury rendered a general verdict in favor of the Caswells and against the Union Stove & Machine Works, and also made certain special findings of fact, which verdict and findings, omitting formal parts, read as follows:

"VERDICT.

"We, the jury duly impaneled and sworn in the above entitled case, do, upon our oaths, find for the defendant J. D. Caswell."

"SPECIAL FINDINGS.

"1. Did the Union Stove & Machine Works ever agree to release the defendant Caswell from the payment of said judgment and take one Fisher for the payment of the same? Ans. Yes, they did through their agent, McGrew.

"2. If you find that the Union Stove & Machine Works accepted Fisher as paymaster of the judgment in question and released defendant Caswell from the payment of the same, state what witness or witnesses testified to that fact? A. Note and mortgage.

"3. Was it not expressly agreed between the Union Stove & Machine Works Company and Fisher, at the time Fisher gave the chattel mortgage to the Union Stove & Machine Works Company, that it was given as additional security for Caswell judgment, and that Caswell was not to be released from the payment of said judgment? A. It was not.

"4. If you answer the above question in the negative, then state fully what the agreement between Fisher and the Union Stove & Machine Works was at the time said mortgage was given? A. Note, mortgage, and extension of time."

The court rendered judgment in accordance with the general verdict; and the Union Stove & Machine Works, as plaintiff in error, brings the case to this court, making the Caswells the defendants in error.

The first alleged error is the ruling of the court permitting the Caswells to introduce evidence tending to prove payment and satisfaction of the aforesaid judgment. There was certainly no error in this, for although the Caswells admitted the judgment and did not specifically deny that anything was due thereon, yet they substantially alleged that the whole of it had been paid and was satisfied; and this, under the facts of the case, was better than a denial.

The next alleged error is, that the court permitted certain papers supposed to constitute copies of certain deed, mortgages, etc., to be introduced in evidence. There does not appear to be any error in this. The originals of the papers were not within the custody or the control of the Caswells, and the copies introduced in evidence seem to have been properly certified copies, and they were introduced in evidence under § 372 of the civil code. ( Hammerslough v. Hackett, 30 Kan. 57, 1 P. 41.)

The next alleged error is the overruling of the demurrer of the Union Stove & Machine Works to the evidence of the defendants Caswell. The substantial question presented by the demurrer to the evidence was, whether the evidence of the Caswells proved their alleged defense, that the aforesaid judgment had been paid and satisfied. It is not necessary for us to consider this question, for after the overruling of the demurrer much additional evidence was introduced, and the Union Stove & Machine Works again, by a motion for a new trial, raised the broader question whether, upon the whole of the evidence introduced on the trial, the Caswells' defense was proved or not. We shall consider only this broader question raised by the motion for the new trial. Taking all the evidence together, and it proves substantially among others the following facts: John D. Caswell was a retail dealer in hardware, stoves, tinware, etc., at Saratoga, in Pratt county; but he owed the Union Stove & Machine Works a large amount of debt, for which his real estate and some of his personal property were mortgaged, and for which debt the aforesaid judgment was rendered in that county. The judgment was also for the sale of the mortgaged real estate. Caswell sold this property and business to William Eastland, and Eastland assumed and agreed to pay Caswell's debt to the Union Stove & Machine Works. Afterward Eastland sold the property and business to William Fisher, and Fisher assumed and agreed to pay the aforesaid debt. Afterward the Union Stove & Machine Works procured an execution to be issued upon said judgment, and R. F. McGrew, an attorney and agent of the. Union Stove & Machine Works, with N. W. Magruder, the under-sheriff of the county, who was holding the execution, went to the place, of business of Fisher to levy upon the property, but finally Fisher gave his negotiable promissory note, dated December 17, 1886, to The Union Stove & Machine Works, for $ 975, due in 10 days, and also executed a chattel mortgage to the Union Stove & Machine Works upon his entire stock of hardware, stoves, etc., to secure the payment of the note, and no levy was made, and the execution, by order of McGrew, was returned to the court. This mortgage included the property which had already been mortgaged by Caswell...

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32 cases
  • Hoffman v. Hoffman
    • United States
    • Kansas Supreme Court
    • April 10, 1943
    ... ... Hackett, 30 Kan. 57, 1 P. 41, and ... Stove Works v. Caswell, 48 Kan. 689, 692, 29 P ... ...
  • Likins-Foster Honolulu Corp. v. CIR
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    ...directly and primarily liable to the mortgagees. Fitzgerald v. Flanagan, 155 Iowa 217, 135 N.W. 738; Union Stove & Machine Works v. Caswell, 48 Kan. 689, 29 P. 1072, 16 L.R.A. 85. Moreover, such procedure in no way prejudiced the rights of the mortgagors to just compensation for their inter......
  • Leach v. Nelson
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    • May 23, 1922
    ...to the mortgagors' rights of subrogation. Calvo v. Davies, 73 N. Y. 211, 29 Am. Rep. 130. See Union Stove & Machine Works v. Caswell, 48 Kan. 689, 29 Pac. 1072, 16 L. R. A. 85. See Iowa Loan & Trust Co. v. Schnose, 19 S. D. 248, 103 N. W. 22, 9 Ann. Cas. 259. Thus, should similar principles......
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