Cole v. Bower

The opinion of the court was delivered by HortON, C. J.: It is insisted that at the time of the settlement between Mrs. Weitzel and George P. Cole, on the 27th day of March, 1890, and the execution by Cole to Mrs. Weit-zel of his note of $721.17 for all rent due under the lease, that Mrs. Weitzel executed to him the following receipt: “Received from George P. Cole note for $721.17, in payment in full of rent of St. James hotel to April 1, 1890. Mary R. Weitzel, By Peckham, & Henderson, her Attorneys.” That the lien on the furniture was discharged thereby, and that the judgment of the foreclosure of such lien was without any support. The contention really is, that the judgment is contrary to the evidence. The trial was had before the court without any jury. None of the parties requested findings of fact. The court made a general finding only in favor of plaintiff below. It appears from the record that a motion for a new trial was filed by Cole, and overruled. The grounds for the new trial are not preserved. As the motion for a new trial is not in the record, we donot know what it contained. We cannot assume that the errors occurring upon the trial now complained of were embraced therein. All the presumptions are in favor of the judgment. In this condition of the record, we cannot pass upon the merits of the case. This court, however, has de [470] cided that the giving of a promissory note for an antecedent debt is prima faeie not a payment or discharge of the indebtedness. (Bradley v. Harwi, 43 Kas. 314, and cases cited.) The receipt, not being a contract, could be explained. (Clark v. Marbourg, 33 Kas. 471.) It appears from the evidence of E. L. Peckham that the firm of Peckham & Henderson had no authority from Mrs. Weitzel to cancel the lease or discharge the lien, and that there was no agreement between the parties that the lease should be canceled or the lien released before the payment of the rent evidenced by the note. The judgment will be affirmed. All the Justices concurring.