Benton v. Benton , 78 Kan. 366 ( 1908 )

The opinion of the court was delivered by

Mason, J..:

But two questions are presented in this case — whether a petition stated a cause of action, and whether an answer stated a defense or a partial defense. The action was brought by Mrs. May Benton against J. O. Benton. The petition, which was filed May 25, 1906, merely declared upon a written instrument in these words:

“Onaga, Kan., 2-24-1904.

“In the matter of the trusteeship of H. H. Benton and myself, I hereby acknowledge that I am personally indebted to Mrs. May Benton to the amount of $5993.62, which I agree to pay as soon as I can,' together with annual interest at the rate of 6 per cent, per annum.

J. O. Benton.”

The defendant maintains that the obligation he assumed in signing this was to pay the amount named only when he should be financially able to do so, and that it was incumbent upon the plaintiff to plead the existence of that condition to show that the paper had matured. The plaintiff contends that the words “as soon as I can” are too vague and indefinite to fix a time of payment, and that the note was therefore payable within a reasonable timé.

Courts generally hold that a right of action does not accrue upon a promise to pay when the debtor is able or when he can until such time as he shall have the financial ability to make payment, and therefore that in declaring upon such a promise the pleader must allege the existence of that condition. A number of decisions to that effect are gathered in volume 8 of Words and Phrases Judicially Defined, at page 7441, in volume 33 of the American Digest, Century edition, c. 1125, section 609, paragraphs c and l, and in volume 2 of Lewis’s edition of Greenleaf on Evidence, section 440, note 3. The following are additional cases to the same effect: Veasey v. Reeves, 6 Ind. 406; Barnett v. Bullett, 11 Ind. 310; Stanton’s Administrator and Heirs v. Brown, 36 Ky. *248; Eckler v. Galbraith & Lail, 75 Ky. 71; Martin v. Ferguson, 3 Ky. Law Rep. 445; Chism v. Barnes, 104 Ky. 310, 47 S. W. 232, 875; Mattocks v. Chadwick, 71 Me. 313; Halladay v. Weeks, 127 Mich. 363, 86 N. W. 799, 89 Am. St. Rep. 478; Denney & Co. v. Wheelwright & Co., 60 Miss. 733; Barker v. Heath, 74 N. H. 270, 67 Atl. 222; Cocks v. Weeks, 7 Hill (N. Y.) 45; Ingersoll v. Rhoades, Hill & Den. Supp. (N. Y.) 371; Work v. Beach, 13 N. Y. Supp. 678; In re Knob, 78 N. Y. Supp. 292, 38 Misc. Rep. 717; Tebo v. Robinson, 100 N. Y. 27, 2 N. E. 383; Cooper v. James, 128 N. C. 40, 38 S. E. 28; Nelson v. Bonnhorst, 29 Pa. St. 352; Scott v. Thornton, 104 Tenn. 547, 58 S. W. 236; Ruzeoski v. Wilrodt (Tex. Civ. App., 1906), 94 S. W. 142; Wright v. National Bank, 31 Tex. Civ. App. 406, 72 S. W. 103.

In Kincaid v. Higgins, 5 Ky. 396, a contrary doctrine is announced in these words, which, however, seem to be in conflict Vith the inter utterances of the Kentucky court':

“A promise to pay as Soph as the debtor possibly Can, Is in the contemplation Of law a promise to pay presently. The law supposes every man able to pay his •debts, and if the ability, to pay was a question to be tried, the only practicable mode of trial is per execution, ánd of this it is not yet too late for the defendant in the court below to have full benefit.” (Page 397.)

In the collection in Words and Phrasés already referred to four cases are cited which are against the general trend of the decisions. One of these (First Cong. Soc. in Lyme v. Miller, 15 N. H. 520) has recently been disapproved, if not formally overruled (Barker v. Heath, 74 N. H. 270, 67 Atl. 222). The others are Horner et al. v. Starkey, Adm’x, etc., 27 Ill. 13, 14; Norton v. Shepard, 48 Conn. 141, 142, 40 Am. Rep. 157; Cummings et al. v. Gassett, 19 Vt. 308, 310. To the minority list may perhaps be added: Walker v. Freeman, 209 Ill. 17, 70 N. E. 595, and Rolfe v. Pilloud, 16 Neb. 21, 19 N. W. 615, 970.

In most of the cases referred to the question presented was whether one who, for the purpose of avoiding' the bar of the statute .of limitations, relies upon a written promise of his debtor to pay when able must show that the promisor’s financial condition is such as to enable him to meet the obligation. Possibly a distinction might be made based upon that fact, although no reason is apparent why the rule adopted, if sound, should not apply to an original contract as well as to one made in renewal of a former obligation. Some of the cases seem to recognize a difference between the expressions “as soon as I am able” and “as soon as I can.” The latter form, being more informal and colloquial, may perhaps be regarded as a shade less definite, but the difference is too slight to justify a refusal to give it the same effect as the former. Notwithstanding the number of adjudications apparently to the contrary, we are of the opinion that the instrument here sued upon should be regarded as a promissory note payable within a reasonable time. In Jones v. Eisler, 3 Kan. 134, action was brought upon an instrument reading as follows:

“$237.37. Ottawa Creek, April 20th, 1860.

“For value received (in cutting stone) by Gouliep Anders, I promise to pay when I receive it from government for losses sustained in August, 1856, or as soon as otherwise convenient, the sum of two hundred and thirty-seven dollars and thirty-seven cents.

John T. Jones.”

The court said:

“The first question presented by the record is, When •did the note sued on become due? The note is not a conditional one. The maker owed the payee, who had performed labor for him. He declares in the paper that he has received the consideration, which all must admit was a valuable one. The existence of the debt was not made to depend upon a condition or contingency. Everything necessary to constitute a promissory note, except the time of payment, is clearly expressed. As to the time the language is peculiar.' It could not have been contemplated that if Jones never got his money from the government, or never should be in a situation when he could conveniently pay, that the money never was to be payable. Jones evidently expected within a reasonable’time to get the money from the government, or, failing in that, within a like time it would otherwise be convenient to pay. After- having performed work to the full amount of the note, it could not have been intended that Anders should never get his money unless Jones got his from the government or should find it otherwise convenient to pay. The intention of the parties doubtless Was that it should in any event be payable in a reasonable time, and such is the legal effect of the instrument.” (Page 138.)

This reasoning applies with equal force in the present case. It is true that so far as the actual decision is concerned a distinction could readily be made based upon the difference between a promise to pay when one should be able and a promise to pay when it should be convenient. The latter form is held to be tantamount to an agreement to- pay within a reasonable-time, upon the theory that otherwise the practical effect would be to give the promisor the option to refuse payment altogether. (Smithers v. Junker, 41 Fed. 101, 7 L. R. A. 264, and cases there cited. See, also, Kreiter v. Miller, I Penny. [Pa.] 46, and 7 Cyc. 857, par. d.) But the argument quoted is as convincing in the one case as in the other. A.note in which the maker without qualification acknowledges an indebtedness to-the payee and promises to pay it as soon as he can,, when subjected to a reasonable interpretation, can. not be construed as a conditional contract — as a contract to pay only in case he shall thereafter accumulate a certain amount of property, otherwise not. The-mere admission of the debt is sufficient to establish an absolute legal liability, lacking only the • element of maturity to make it available as a cause of action. It. is entirely inconsistent with the spirit and purpose of the engagement to suppose for a moment that the parties contemplated that the avowed obligation should never be capable of enforcement, even to the extent of the obligor’s ability to pay, unless he should become financially able to meet the entire obligation at once.

The trial court held that the petition stated facts sufficient to constitute a cause of action, and sustained a demurrer to a count of the answer which set out in detail the transaction out of which the instrument originated and alleged that it was given without consideration. The answer would seem to be good as a plea of want of consideration, unless the detailed facts showed affirmatively the existence of a good consideration. The facts so pleaded were substantially as follow: A. H. Benton (a son of the defendant) died testate in February, 1898, leaving a widow, the plaintiff herein (to whom shortly thereafter a child was born), and a minor son, who is not yet of age. The will, which was duly probated, reads in part:

“I . . . make the following disposition of my property . . . ten thousand dollars held in the New York Life disposed of as follows:

“(1) Two thousand dollars to unborn child at its majority.

“(2) Eight thousand dollars to wife, all of which is to be held in trust by J. O. and H. H. Benton [another son of the defendant] without bond — they to pay heirs such rate of interest as shall b.e agreed upon, until children become of age — and she remains unmarried— in such case money shall fall to my legal heirs.”

The trust referred to was accepted by the trustees, the money was paid over to them, and an agreement was made fixing 7 per cent, as the rate of interest. The posthumous child lived but a short time. About four years before the beginning of the action the plaintiff was married to H. ,H. Benton. The sum named in the note sued on was the amount of the trust fund then in the hands of the defendant.

We do not at this time pass upon the interpretation or effect of the will, for no definite question with respect thereto has been argued. The purpose of the testator seems to have been that the trustees should hold the $8000 until the children became of age, in the meantime paying interest to them and theis mother, and then turn the principal over to her unless she had remarried, in which case it should be divided among the three. At all events the children were intended to be beneficiaries of the trust to some extent, and the surviving child has apparently an interest in its continuance. In the brief of the plaintiff the situation presented by the pleadings is said to be:

“That certain trust funds had been paid over to J. O. Benton, that a settlement of the trusteeship was afterward had, and as a result of that settlement J. O. Benton became ‘personally indebted’ to May Benton in the sum of $5993.62, with interest. The wording of the instrument sued on clearly suggests this explanation of the transaction. Since J. O. Benton has himself declared the indebtedness to be a personal indebtedness of himself to May Benton, the court will not assume the existence of a contradictory state of facts, and, in the absence of an allegation of fraud or mistake, will not permit to be alleged or proven a state of facts which contradicts that written declaration of J. O. Benton. In other words, the court will assume that the indebtedness sued on is, in fact, a personal indebtedness, as J. O. Benton has declared it to be, and, if necessary in construing the instrument, will also assume that there had been a valid settlement of a previously existing trusteeship, resulting in the kind of an obligation which J. O. Benton declares it to be — a personal indebtedness.”

The difficulty in accepting this reasoning is that the answer not only sets out the facts with regard to the will and the proceedings thereunder, but goes further and alleges that apart therefrom there was no consideration for the instrument sued upon, thereby in effect pleading that no valid settlement of the trust had been had. Possibly the mere giving of the note and the bringing of an action upon it might be construed as a termination of the trust, as between the plaintiff and defendant, who were competent to act for themselves. But the surviving son is still a minor and could not be bound by mere consent to a transfer of the trust fund, even if such consent were shown. The recital in the note that the defendant is personally indebted to the plaintiff may be good evidence against him of a settlement of the trust, but it is not conclusive. The statement of consideration made in a written contract may ordinarily be contradicted. (9 Cyc. 368; 6 A. & E. Encycl. of L. 767, et seq.; 11 Cent. Dig., c. 200; 4 Wig. Ev. § 2433.) There is nothing contractual about this feature of the present agreement; it is tantamount to a formal acknowledgment of value received.

SYLLABUS BY THE COURT. WILLS — Construction. Upon a question involving the interpretation of a part of a will reading “I . . . make the following disposition of my property . . . eight thousand dollars to wife, all of which is to be held in trust by J. O. and H. H. Benton without bond — they to pay heirs such rate of interest as shall be agreed upon, until children become of age — and she remains unmarried' — -in such case money shall fall to my legal heirs,” held, that the words “in such case” are equivalent to “in case she remarries.”

The specific facts stated in the answer do not show an indebtedness of the defendant to the plaintiff, at least not to the extent of the amount named in the note; therefore the allegation that the note sued on was not supported by any consideration raised an issue.

The judgment is reversed and the cause remanded for further proceedings.