Nutt v. Humphrey

32 Kan. 100

• Court: Supreme Court of Kansas
• Decided: January 15, 1884
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The ruling of the district court is claimed to be erroneous, principally upon the ground that the written contract set out in the answer showing that two women made a trade and agreement, is not admitted by the. demurrer to have been.made by their husbands, William H. Humphrey and Oscar-J. Hunt; also, that as none of the persons signing the agreement are parties to this action, nor in any degree connected with it, the agreement is Avholly immaterial. Further, it is contended that as the indorsement of the note and mortgage to the plaintiff is not denied under oath, the ownership is admitted by the answer, and therefore the defendant cannot urge that it was the duty of Oscar J. Hunt to pay the mortgage, or that there was any conspiracy entered into between him and the plaintiff to cheat and defraud the' defendant. It is true that the written contract is signed by Sarah A. Hunt and Mary Humphrey, but it cannot be doubted -that- parol testimony is admissible to show that one or both of the contracting parties to a written contract were agents of other persons, and acted as such agents in making the contract so as to give the benefit of the contract to an unnamed principal and to charge with liability an unnamed principal. Such evidence in no way contradicts the written agreement. (Dykes v. Townsend, 24 N. Y. 61; Butler v. Kaulback, 8 Kas. 668; Wolfley v. Rising, 12 id. 535-538; Railway Co. v. Thacher, 13 id. 564.)

The answer alleges that the defendant, in the name of his wife Mary Humphrey, and Osear J. Hunt, in the name of his wife Sarah A. Hunt, on the 22d day of July, 1878, executed the agreement. Under the allegations of the answer, evidence is admissible that Mary Humphrey and Sarah A. Plunt were only the agents of the real contracting parties. The demurrer therefore not only admits the written agreement set up in the answer, but admits that the defendant and Oscar J. Hunt were the real principals.

If Hunt paid the mortgage, then under the written agreement, if he was a party thereto, the amount so paid may be a lien upon the land named in the agreement, but is not a lien or a claim upon the personal property described in the petition.

It is urged that under the agreement there was reserved a mere option on the part of Mrs. Hunt, acting for Oscar J. Hunt, to pay off the chattel mortgage. If, however, Hunt actually paid the mortgage, then within the terms of the agreement he exercised his option to pay the same. If, thereafter, to cheat and defraud the defendant, he had the note and mortgage transferred to the plaintiff without any consideration, this gives the latter no claim thereunder as against the defendant.

As the answer is not verified by affidavit, the allegations of the indorsements in the petition are admitted, but this admission does not prevent the defendant from establishing that the chattel mortgage was fully paid prior to the commencement of this action.

We have examined the other questions presented, but do not think them important.

The judgment of the district court must be affirmed.

Valentine, J., concurring. Hurd, J., not sitting in the case.