Upham v. Shattuck
| Decision Date | 04 May 1940 |
| Docket Number | 34730. |
| Citation | 101 P.2d 901,151 Kan. 966 |
| Parties | UPHAM v. SHATTUCK et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The doctrine of "anticipatory breach of contract" by which the time to sue thereon may be accelerated applies to bilateral executory contracts, but does not apply to a mere promise to pay money, such as a negotiable promissory note.
Action on negotiable note before maturity was premature notwithstanding maker denied liability and conveyed his property without consideration so as to render himself insolvent, since doctrine of "anticipatory breach of contract" by which time to sue thereon may be accelerated did not apply to such note.
Where note recited promise to pay five years after date $1,000 at 4 percent. interest "annually," interest was not due until the principal was due five years from date, since the word "annually" is an adverb meaning in annual order or succession; yearly, every year, year by year, and as used could mean that interest was to be computed yearly or year by year, but did not necessarily mean payable yearly.
Whether an amended petition is also a supplemental petition depends upon its contents rather than upon what it is called.
Where action on note was prematurely brought before note was due but by leave of court an amended petition was filed after note was due, the amended petition pleading the note as a separate cause of action and alleging that it was past due and unpaid was a "supplemental petition" within statute, and entitled plaintiff to judgment on the note. Gen.St.1935, 60-764.
Where notes were not yet due so that payee's action thereon was dismissed as premature, payee could not maintain action to set aside maker's deed alleged to have been executed without consideration with intent to defraud creditors, until after judgment had been obtained and an execution returned unsatisfied.
1. The doctrine of an anticipatory breach of contract by which the time to sue thereon may be accelerated applies to bilateral executory contracts; it does not apply to a mere promise to pay money, such as a negotiable promissory note.
2. The maker of a negotiable note promised to pay, five years after date, $1,000 "at four percent interest annually." Held, the interest was not due until the principal was due.
3. Whether on amended petition is also a supplemental petition is determined from its allegations. Suit was prematurely brought on a note not due. By leave of court an amended petition was filed after the note was due. The allegations of the amended petition are examined and held to constitute a supplemental petition.
4. Ordinarily, an action to set aside a deed as having been executed without consideration and in fraud of creditors, and particularly the plaintiff, cannot be brought before plaintiff has obtained judgment and had an execution returned unsatisfied. Held, the facts alleged here do not justify varying this rule.
Appeal from District Court, Linn County; William F. Jackson, Judge.
Action by Ruth Upham against Clyde Shattuck and others upon notes and to set aside a deed. From judgment for defendants plaintiff appeals.
Reversed in part, and affirmed in part.
Harry W. Fisher, of Fort Scott, for appellant.
Harry C. Blaker, of Pleasanton, for appellees.
This was an action on four promissory notes and to set aside a deed, executed by the surviving maker of the notes, alleged to have been without consideration and in fraud of plaintiff. The trial court, treating it as a demurrer, sustained defendants' motion for judgment on plaintiff's second amended petition. Plaintiff has appealed.
The petition was filed February 23, 1939, and the second amended petition October 11, 1939. The first cause of action was upon a note, which reads as follows:
The second and third causes of action were upon notes identical in every respect with the note copied, except that the payee in one of them was Harriett Upham and the payee in the other was Isabelle Upham, and they were endorsed by the payees and as to them plaintiff alleged that she was a holder in due course. The fourth cause of action was upon a note, signed by Clyde Shattuck, for $100, dated April 18, 1938, due in one year after date and payable to the order of plaintiff, with interest at three percent per annum. In the petition it was alleged that on January 28, 1938, Clyde Shattuck and Willietta Shattuck, the makers of the three $1,000 notes, were husband and wife and owned a described 240-acre tract of land; that Willietta Shattuck owned in her own name a described 120 acres of land; that Willietta Shattuck died intestate January 4, 1939, and that Clyde Shattuck is her only heir at law; that on January 30, 1939, Clyde Shattuck conveyed, by warranty deed, to Edna Reinke, his daughter by a previous marriage, the 240-acre tract of land previously mentioned; that by this deed Clyde Shattuck divested himself of all real estate, that he has only a small amount of personal property, and has rendered himself insolvent; that on February 2, 1939, the defendant, Clyde Shattuck, stated to plaintiff that Willietta Shattuck, deceased, owed no obligation upon the notes she signed, that he had no obligation upon said notes, and that if he did have any obligation on them he had no means with which to pay either the principal or the interest; that Clyde Shattuck disaffirmed his obligation upon the notes; that he does not intend to meet his obligations represented by the notes, and has placed himself in a position where it is impossible for him to do so. It was alleged that because of this disaffirmance, and of his conduct in conveying the real property to his daughter, he has breached the contracts represented by such notes, and that plaintiff is entitled to judgment thereon. It further was alleged that Edna Reinke paid no consideration for the conveyance of the land to her, that she received the same with the full knowledge that Clyde Shattuck was making himself insolvent, and that the deed was made by Clyde Shattuck with the intent to hinder and defraud his creditors, particularly this plaintiff. The prayer was for judgment upon all of the notes, with interest, and for a decree setting aside the conveyance above mentioned, and the court was asked to enjoin defendants from conveying or encumbering the real property described in the deed pending the final determination of this action.
It is readily observed that none of the notes was due when the action was brought....
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