Wilkes v. Wolback

• Decision Date: 01 July 1883
• Citation: 2 P. 508,30 Kan. 375
• Parties: F. R. WILKES v. DAVID WOLBACK, et al
• Court: Kansas Supreme Court

2 P. 508

30 Kan. 375

F. R. WILKES v. DAVID WOLBACK, et al

Supreme Court of Kansas

July 1, 1883

Error from Decatur District Court.

ACTION by Wilkes against Wolback and another, on a promissory note for $ 100, with interest. Judgment for the defendants at the September Term, 1882, of the district court. The plaintiff brings the case here. The opinion states the facts.

Judgment affirmed.

T. R Wilkes, plaintiff in error, for himself.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

Action on a promissory note. Defense, want of consideration, and that it was a mere accommodation note executed by defendants to plaintiff. Trial by a jury. Verdict and judgment for defendants. Plaintiff alleges error.

It is claimed that the court erred in charging the jury that the burden was on the plaintiff to prove the amount due on the note, and this for the reason that the execution of the note was admitted. Prima facie, therefore, it was valid, and was a promise on the part of defendants to pay the amount therein to the plaintiff. Whatever force there might be to this objection, if the jury had found for the plaintiff in an amount less than that named in the note it cannot avail him anything as the case now stands. The verdict was for the defendants, and the court, after stating the claim of defendants, thus instructed:

"The burden of proof, that said note was given as aforesaid to enable the plaintiff to borrow money as aforesaid, and for no other consideration whatever, as stated above, is upon the said defendants, and to entitle them to recover in this case they must prove the same by a preponderance of the testimony. If the defendants have so proven that said note was so executed by them to simply enable the plaintiff to borrow money, and that they the defendants did not receive any consideration for said note, then you should bring in a verdict for said defendants."

"The law presumes that where a note like the one set forth in plaintiff's petition has been executed and delivered by a person to another, that it is so executed and delivered for a valuable consideration, and this presumption exists and remains until the contrary is shown by a preponderance of evidence."

This is correct. It states the rule properly for the guidance of the jury in determining the main issue between the parties. Under this instruction the jury acted. They never had any occasion to consider the other instruction, for they never...