Borden v. Noble

26 Kan. 599

• Court: Supreme Court of Kansas
• Decided: July 15, 1881
• Status: Published

Opinions

The opinion of the court was delivered by

Horton, C. J.:

The defendant in error (plaintiff below) commenced her action against the plaintiffs in error (defendants below), and alleged in her petition substantially as follows: That on September 12, 1876, she loaned through her agent, one A. B. Noble, to one Enoch Fry, $165, with interest at twelve per cent., payable annually; that on October 1,. 1876, one M. A. Myers became indebted to the said Fry in a large amount, and by an arrangement between her, Fry and Myers, the latter assumed and agreed to pay her the said $165 and interest, on account of Fry, when the same became due, which agreement she accepted, and thereupon discharged Fry from all liability. Afterward, O. J. M. Borden, one of the plaintiffs in error, commenced an action against A. B. Noble before a justice of the peace of Harvey county, and caused said Myers to be summoned as a garnishee, alleging that Myers was indebted to A. B. Noble. The justice before whom the garnishee proceeding was pending, ordered Myers to pay the money into court on the 15th day of September, 1877, as the property of said A. B. Noble. On October 27, 1877, Sarah A. Noble, A. B. Noble and M. A. Myers entered into an agreement with C. S. Bowman, whereby $165 was placed in the hands of C. S. Bowman by M. A. Myers, to be retained by him until the rights of the various parties thereto should be determined by subsequent litigation, and by him to be paid to the person to whom the court should direct. Plaintiff further alleged that she was deprived of tho use of her money by the wrongful acts of Borden, and demanded judgment against him for her costs, and a decree declaring the money the property of herself, with an order that the defendant C. S. Bowman deliver the money to her with interest at twelve per cent, thereon. Each of the defendants filed his separate demurrer to the petition, separately stating as grounds thereof, first, that there was a defect of parties defendant; second, that the petition did not state facts sufficient to constitute a cause of action against either of said defendants. The court overruled the demurrers, and each of the defendants filed his separate answer. Upon the trial, defendants objected to the introduction of any evidence, because the petition did not state facts sufficient to constitute a cause of action. The objection was overruled, and a verdict rendered in favor of plaintiff for $150. Judgment was entered thereon.

We think the demurrers were properly overruled. As-Sarah A. Noble and O. J. M. Borden consented that the 1165-due from Myers, and claimed by both, might be deposited with C. S. Bowman, and that they would accept him and his bond for the indebtedness, such contract released and discharged Myers from all liability to either, upon his compliance therewith. After such contract, and the deposit of the money with Bowman by Myers, in accordance with its terms, the latter was no longer interested in said money, or the contention of Mrs. Noble and Borden over it. It was immaterial to him whether Mrs. Noble recovered, or whether Borden was successful in his claim. The contract and the deposit of the money relieved Myers of all responsibility, and he was not a necessary party in the action to determine whether it should go to the one or the other. As all the parties to the contract treated the money deposited with Bowman in lieu of the sum loaned to Fry, and as the court below treated it in-lieu of the money which Myers had assumed to pay for Fry,, we may treat it in the same light. Indeed we ought to do so,, in justice to all the parties. The petition distinctly alleges the money as being the property of the defendant in error.. The whole controversy was, whether the money, considered by the contract as the identical money originally loaned to-Fry, belonged to Mrs. Noble, or to some one else. In this view the petition was sufficient in its statement of facts. Of course, had the contract between the parties for the deposit of the money not been entered into, we do not intimate that. Sarah A. Noble would have any cause of action against either Borden or Bowman. The order against Myers by the justice of the peace in the garnishment proceedings would not have protected him from the independent action of Sarah A. Noble. The judgment of the district court will be affirmed.

All the Justices concurring.