Ely v. Deaver

532 P.2d 1105, 216 Kan. 352

• Court: Supreme Court of Kansas
• Decided: March 1, 1975
• Docket: No. 47,466
• Status: Published

Opinion

Per Curiam:

The plaintiffs sued to recover on an indebtedness represented by a promissory note in the amount of $1,860. In their petition, plaintiffs admitted payments had been made and that they did not know the amount of the unpaid balance. The plaintiffs alledged that the defendants knew the balance due on the promissory note. Defendants admitted liability for $84.35. There was testimony on both sides, but no evidence on the actual number of payments that had been made, the parties asserting ignorance on this point. There being nothing before the court upon which to> base a finding other than the defendants’ admission of liability for $84.35, the court rendered judgment for that amount, with interest and costs against the defendants.

On appeal, plaintiffs claim judgment should have been for the full amount of the original debt, as evidenced by the note, and that the burden was upon the defendants to show payment.

Although the note was attached to the petition the action was not on the note, but was for an undetermined balance due under an allegation that payments had been made, thus destroying the prima facie value of the note as evidence of the present indebtedness. It was up to the plaintiffs to introduce some evidence to establish the amount of the “balance” they claimed. This they did not do.

The judgment is affirmed.