Lynds v. Van Valkenburgh

Citations

• 77 Kan. 24
• 93 P. 615
• 1908 Kan. LEXIS 220

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negotiable Instruments —■ Failure of Consideration — Innocent Purchaser. The consideration for certain promissory notes secured by a mortgage on land in Kansas was that the payee should assume the payment of certain notes secured by real-estate mortgages on land in Nebraska which was conveyed to the payee. The payee sold and indorsed the Kansas notes to a third person, who brought suit upon them. The maker pleaded a failure of consideration, in that the payee had not paid the Nebraskd notes and discharged the Nebraska mortgages. The court found that the indorsee was not an innocent purchaser and knew at the time he took the Kansas notes the maker claimed a defense to them on account of the failure of consideration described. It made no finding that at the time of the indorsement the information of the indorsee extended to any defense of failure of consideration upon any other ground. Held, the contract, the pleading and the finding all forbid that judgment in favor of the indorsee should be denied for a failure of consideration in respect to any matter other than the one stated.</p> <p>2. --- Burden of Proving Failure of Consideration. In the suit referred to the plaintiff was not required to prove that he or the payee of the Kansas notes paid any of the Nebraska notes or discharged any of the Nebraska mortgages. The burden of proving the failure of consideration pleaded rested upon the defendant.</p> <p>3. -Payment- — Burden of Proving Subsisting Liability. The court found that the Nebraska notes had been paid but that the evidence did not disclose by whom the payment had been made. Held, the plaintiff was entitled to judgment on the findings.. The word “paid” means, prima, facie, that the obligations have been satisfied and the demands extinguished; and if the obligors on the Nebraska paper still rest under liability upon it the defendant should have established the fact.</p> <p>4. —-Possession of Canceled Instruments. The court