Yuncker v. English

• Decision Date: 10 July 1926
• Docket Number: 26,674
• Citation: 121 Kan. 425,247 P. 637
• Parties: E. L. YUNCKER, Appellant, v. J. G. ENGLISH, Appellee
• Court: Kansas Supreme Court

247 P. 637

121 Kan. 425

E. L. YUNCKER, Appellant, v. J. G. ENGLISH, Appellee

No. 26,674

Supreme Court of Kansas

July 10, 1926

Decided July, 1926.

Appeal from Stafford district court; RAY H. BEALS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

BILLS AND NOTES--Contents Affecting Validity--Note Given for Patent Right--Necessity of so Stipulating--Effect of Renewal Note. A note given for a patent right, which note does not recite that fact, is invalid in the hands of an indorsee who takes the note with knowledge thereof; and a renewal note given to the indorsee to take up the original note, which renewal note does not recite that it is given for a patent right, is invalid and cannot be enforced by him.

John A Etling, Frank L. Slaughter, both of Kinsley, Walter L. Bullock, of Dodge City, W. H. Vernon, Jr., and J. S. Vernon, both of Larned, for the appellant.

F. Dumont Smith, of Hutchinson, and Carl Van Riper, of Dodge City, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff, the indorsee of a promissory note signed by the defendant, sued to recover on that note. One of the defenses was that the note, with the knowledge of the plaintiff, had been given for a patent right, and the note did not have any words indorsed on it indicating it had been so given. Another defense was that the plaintiff had sued another party for recovery on the note and that the action thus commenced was an election of remedies inconsistent with the present action. Judgment was rendered in favor of the defendant, and the plaintiff appeals.

We quote from the statement of facts by the plaintiff as follows:

"Fred G. Hager and Clara Hager executed and delivered to W. T. Hale their certain promissory notes aggregating $ 26,000 and secured the same by a certain real-estate mortgage on lands in Edwards county. These notes and mortgages were given to Hale in part payment of a patent right, sold by Hale to Hager, and that fact was not noted upon said notes or mortgage. W. T. Hale transferred said notes and mortgage to E. L. Yuncker, plaintiff below. Thereafter and on April 24, 1919, and before maturity of said notes and mortgage, E. L. Yunckers sold, assigned and indorsed said notes and mortgage to J. G. English, defendant below, for $ 21,500, of which amount $ 5,000 was paid in cash. For the balance due, J. G. English executed to E. L. Yuncker three promissory notes, two of which were for $ 5,000, each payable in 30 and 60 days, respectively, which notes were paid by defendant to plaintiff. The third note was for $ 6,500 payable on the 24th day of July, 1919, with interest at the rate of ten per cent per annum from maturity. This note was not paid, and this action was instituted in the district court of Stafford county to enforce collection of the same. At the time Yuncker sold and indorsed the notes and mortgage of $ 26,000 to English, both Yuncker and English knew that said notes and mortgage had been given by the Hagers in part payment of a patent right."

The court made findings of fact and conclusions of law as follows:

"1. I find that the defendant gave to the plaintiff a note for $ 6,500 and that said note is past due and unpaid.

"2. I find that the consideration for said note was for the part payment for an alleged patent right, and that the words 'Given for a patent right,' were not inserted in said note, nor were any words inserted therein to show that the note was given for a patent right.

"3. I find that the plaintiff herein instituted an action in the district court of Ford county, Kansas, against the Macksville State Bank of Macksville, Kan., on the identical note referred to herein, and that he brought said action with full knowledge of his rights, and I find that he elected to bring his action against the Macksville State Bank of Macksville, Kan.

"4. I find that the plaintiff afterwards dismissed said action in the district court of Ford county, Kansas.

"5. I find that the note in suit is void for the reason that there was not inserted in said note, 'Given for a patent right,' or any words to that effect.

"6. I find that plaintiff by bringing his action in the district court of Ford county, made an election which is a bar to suing this defendant in the district court of Stafford county.

"7. I find that both the plaintiff and defendant knew that the alleged consideration...