Christie v. Scott

Citations

• 77 Kan. 257
• 94 P. 214
• 1908 Kan. LEXIS 254

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Conditional—Purohase-money Note — Retaking Pos- . session — Révocation of Contract — Failure of Consideration. C. sold to S. an article of personal property and at the time of sale took a promissory note executed by S. for the full amount of the purchase-price, bearing interest until paid, and on the same paper, following the promissory note and before the signature of the maker, the following contract was inserted: “The express condition of the sale and purchase of [words describing the particular implement] for which this note is given is such that the right or title or ownership does not pass from W. L. Christie until this note and interest is paid in full, and he may declare this note due at any time, even before its maturity, and also take possession of said above-named property, remove and sell the same, and apply the proceeds toward payment of this note, less the expense of such removal and sale. All expense incurred in the collection of this note after maturity shall be paid by the maker thereof. Payable at the office of- W. L. Christie, Cedar Vale, Kan.” C., in accordance with the provisions of the contract, after default of payment, took possession of and sold the property described therein and applied the proceeds toward the payment of the note, and afterward brought suit for a balance remaining unpaid thereon. Held, that the law does not imply a revocation of the contract by such taking and selling, nor does it imply that there is no consideration remaining to support a recovery upon the unconditional promise in the note to pay the remainder of the purchase-price.</p> <p>2. Pleadings — Demurrer—Statute of Limitations. Where it appears by a pleading that more than five years have elapsed since the maturity of a note before the bringing of an action thereon, but facts are alleged in the pleading which, if true, suspended the running of the statute for such time that the bar thereof had not fallen at the commencem