Burden Bank v. Phelps

Court of Appeals of Kansas

Burden Bank v. Phelps

48 P. 938, 5 Kan. App. 685, 1897 Kan. App. LEXIS 603

CourtCourt of Appeals of Kansas

DecidedMay 14, 1897

DocketNo. 198

StatusPublished

This text of 48 P. 938 (Burden Bank v. Phelps) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burden Bank v. Phelps, 48 P. 938, 5 Kan. App. 685, 1897 Kan. App. LEXIS 603 (kanctapp 1897).

Pincite

Opinion

Milton, J.

The record in this case presents but one question for our consideration : Did the Bank lawfully pay the check? The amended bill of particulars alleges that the check was accepted and guaranteed to be good by the plaintiff at the special instance and request of the defendant, and upon his promise to reimburse plaintiff for any payment it might lawfully make upon said check. The check was without consideration, the object'for which it was given, as stated in the certificate, was against public policy, and therefore void. The check is dated October 16, and was given to influence the voters to carry the bonds to be voted upon at an election which was to occur three days later. The election was called and would have been held, and no additional expense was made by the township because of the giving of the check. There was no consideration given or assumed by the township. It could not therefore have maintained an action upon the check. The amended bill of particulars states that a large number of the electors [687]*687were opposed to voting the bonds without such guarantee, and that for the purpose of removing such objection and inducing said electors to vote the bonds, the defendant executed the check, procured its certification as aforesaid, and delivered it to the township treasurer, and that by reason of the giving of such check the bonds were voted. The check being given and the certification being made for the sole purpose of influencing the voters of Sheridan Township to carry the bonds, the transaction was against public policy, and the certification showing the exact purpose for which the check was given, it was void. The plaintiff is in no condition to assert that it did not know of the purposes for which the check was given, and was acting in good faith, for the reason that the certification shows the exact purpose for which it was made.

Counsel for plaintiff contends that paragraph 1285 of the General Statutes of 1889 expressly authorizes the giving of the guarantee. In this he is certainly mistaken. Paragraph 1285 provides that before an election shall be called to vote aid, etc., by any county, township or city, a sum shall be paid or secured to the county commissioners sufficient to pay the expenses of the election. It does not say that, after the election has been called and all the expenses incurred, a sum shall be paid or guaranteed to influence the electors to carry the bonds.

The court committed no error in sustaining the objection to the introduction of any evidence to support the amended bill of particulars.

The judgment is affirmed.

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Milton, J.

The record in this case presents but one question for our consideration : Did the Bank lawfully pay the check? The amended bill of particulars alleges that the check was accepted and guaranteed to be good by the plaintiff at the special instance and request of the defendant, and upon his promise to reimburse plaintiff for any payment it might lawfully make upon said check. The check was without consideration, the object'for which it was given, as stated in the certificate, was against public policy, and therefore void. The check is dated October 16, and was given to influence the voters to carry the bonds to be voted upon at an election which was to occur three days later. The election was called and would have been held, and no additional expense was made by the township because of the giving of the check. There was no consideration given or assumed by the township. It could not therefore have maintained an action upon the check. The amended bill of particulars states that a large number of the electors [687]*687were opposed to voting the bonds without such guarantee, and that for the purpose of removing such objection and inducing said electors to vote the bonds, the defendant executed the check, procured its certification as aforesaid, and delivered it to the township treasurer, and that by reason of the giving of such check the bonds were voted. The check being given and the certification being made for the sole purpose of influencing the voters of Sheridan Township to carry the bonds, the transaction was against public policy, and the certification showing the exact purpose for which the check was given, it was void. The plaintiff is in no condition to assert that it did not know of the purposes for which the check was given, and was acting in good faith, for the reason that the certification shows the exact purpose for which it was made.

Counsel for plaintiff contends that paragraph 1285 of the General Statutes of 1889 expressly authorizes the giving of the guarantee. In this he is certainly mistaken. Paragraph 1285 provides that before an election shall be called to vote aid, etc., by any county, township or city, a sum shall be paid or secured to the county commissioners sufficient to pay the expenses of the election. It does not say that, after the election has been called and all the expenses incurred, a sum shall be paid or guaranteed to influence the electors to carry the bonds.

The court committed no error in sustaining the objection to the introduction of any evidence to support the amended bill of particulars.

The judgment is affirmed.

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Bluebook (online)

48 P. 938, 5 Kan. App. 685, 1897 Kan. App. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burden-bank-v-phelps-kanctapp-1897.