Bain v. Watson , 81 Kan. 595 ( 1910 )

Per Curiam:

The substantial question in this case is one of fact. The court has read all the evidence and finds itself impelled to the conclusion the jury reached. It believes payments other than those indorsed on the note were made, but, like the jury, is unable to specify dates or amounts. Annual interest for every year from 1881 up to and including 1898 is accounted for. According to the letter of April 17, 1882, the maker of the note was to have the money without interest for three years after the payee’s death. On this basis the years 1894, 1895 and 1896 are accounted for. The payments indorsed in 1899 cover that and the two preceding years. From that time on there is no difficulty in applying the payments made to support the verdict, if it be assumed that the interest back of 1881, whatever the amount, had been satisfied. The court is not inclined to indulge presumptions from the language of any of the receipts given, but under the peculiar circumstances of this case slight evidence of payment is sufficient. The court finds such evidence in the relations of the parties, as disclosed in their correspondence showing continuing fidelity to obligation on one side and unshaken confidence, trust and affection on the other, in their consistent treatment of the debt for such an extended period of years as if there were no arrearages, and in expressions of the payee, indicating her satisfaction with the state of the loan and the annual payment to her of accruing interest. It is certain that any interest delinquent prior to 1881 was either paid or forgiven, and upon the whole record a finding of payment is sufficiently sustained.

.The defendant did not rest upon his tender but sought to defeat recovery altogether, until he concluded to stop with the evidence introduced relating to payments. Therefore the plaintiff should have recovered costs. The judgment of the district court will be modified to this extent. The costs in this court are divided.