Davenport v. Elliott , 10 Kan. 587 ( 1873 )

The opinion of the court was delivered by .

Valentine, J.:

Elliott sued Davenport in a justice’s court on a negotiable promissory note given by Davenport to one Barnett, and indorsed by Barnett to Elliott. Both Elliott and Davenport filed their bills of particulars in the justice’s court. Elliott obtained judgment in that court, and Davenport appealed to the district court. The district court permitted Elliott to file a reply to Davenport’s bill of particulars, over Davenport’s objections and exceptions. This was certainly not such an error, if error at all, as will require a reversal of the judgment of the district court. It is not shown that the court below abused its discretion, or erred to the prejudice of the defendant below. If the reply was necessary, then the court had the undoubted right to allow it to be filed upon such terms as were just. But if it was not necessary, then no injury was done, and no substantial error was committed.

The case was tried in the district court by a jury, the main issue in the case being, whether Elliott was a bona fide owner and holder of the note. This issue was principally a question of fact; and so far as it was a question of fact it was found by the jurjr in favor of Elliott, and against Davenport. The law was correctly stated by the court. Or indeed if the court erred at all it was in favor of Davenport. The charge of the court was corréct unless it was too favorable to Davenport. Therefore, unless the verdict is not sustained by sufficient evidence, or is contrary to law, the verdict must stand, and the judgment of the court below founded thereon must be affirmed. There was evidence tending to show that Elliott resided on Barnett’s farm, in Kansas; that Elliott made improvements thereon, and looked to Barnett for compensation therefor; that Elliott and Barnett had an unsettled account between them; that Barnett resided in Illinois; that before the note became due Elliott wrote a letter to Barnett proposing to purchase the note, and pay therefor the amount of the note and the interest thereon; that Barnett, in answer to said letter, inclosed said note, properly indorsed by himself, in a letter to Elliott, and sent it and the letter to Elliott, merely saying in the letter, “I inclose you the Davenport note; you are sound on the goose;” that Elliott received the note before it was due, placed the amount thereof to Barnett’s credit, and did not otherwise pay anything on or for the note; that he then, and before the note became due, told Davenport that he held the note, and that Davenport must pay the same when it became due; that Davenport did not pay any sum to Elliott, but sent the amount of the note with .interest to Barnett when the note became due, and that Barnett received and accepted the same in payment of said note. Elliott testified that he purchased the note from Barnett, and Barnett testified that he indorsed the note and sent it to Elliott for collection merely. The jury found in favor of Elliott. We think the jury found correctly. Elliott became the owner of the note by purchase from Barnett. It is not necessary in order to transfer title to a promissory note that the purchase-money therefor should be paid down. Indeed, it has been held in New York that the indorsee of a promissory note for a consideration which was by the agreement of the parties not to be paid until the note should be collected was nevertheless the owner of the note, the real party in interest, and might maintain an action thereon: Cummings v. Morris, 3 Bosw., 560; same case, 25 N. Y., 625. The case at bar is different from all the cases cited by counsel for plaintiff in error. The note in this case is valid against all attacks. No legal or equitable defense existed against the note when it was assigned. It was not affected by usury, or any other illegality, nor by fraud, nor by any want or failure of consideration. Everything connected with it, legal and equitable, was in its favor, and everything passed to Elliott by the assignment. When Davenport paid Barnett said money he could not pay it on the note, for Barnett did not have possession of or hold or own the note. He could -not pay any debt to Barnett, for he did not owe Barnett any debt; and he cannot now plead any ignorance or innocence with regard to the matter’, as he well knew who owned the note when he paid Barnett the money. He should have paid Elliott, and then allowed Elliott and Barnett to settle their affairs between themselves. The judgment of the court below is affirmed.

All the Justices concurring.