Gonder v. Dodge

Citations

• 97 Kan. 562
• 155 P. 937
• 1916 Kan. LEXIS 347

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Payment of Preexisting Debt — Burden of Proof. Prima facie a promissory note is not a payment or discharge of the original indebtedness and the burden rests upon the person who claims that it was given and accepted as such.</p> <p>2. Petition — Two Counts — Only One Count Tried — New Trial as to . the Other. A petition contained two counts, one for the recovery of a real-estate agent’s commission, and one upon a promissory note the consideration of which was the same indebtedness. The answer was a general denial and a plea that the note was materially altered subsequent to its delivery. The issue as to the alteration of the note was the only one submitted to the jury, and there was a verdict for the defendants. Held, that the proceedings do not show an intention to waive the right to recover on the first count and that plaintiff is entitled to a trial on that cause of action.</p>