Skinner v. Mitchell
Skinner v. Mitchell
Opinion of the Court
It is contended on the part of the plaintiffs in error that this bond is in the nature of a covenant running with the land, known as a “ real ” covenant. This position is not tenable. A covenant to pay off a certain mortgage is personal, even though
The plaintiffs in error allege error on the part of the trial court in the admission of evidence, and also in excluding evidence. The plaintiffs in error fail to point out what evidence was received over their objection, and also what evidence was excluded. We have examined the evidence very carefully and we are unable to find any error committed by the trial court in admitting or rejecting evidence, as against the plaintiffs in error.
The plaintiffs in error claim that the trial court committed error in overruling their demurrer to the plaintiff’s evidence. The record shows there was competent testimony before the jury as to each material allegation in plaintiff’s petition. The plaintiff made a prima facie case. There was enough evidence to justify the jury in finding for the plaintiff. In the case of Harter v. A. T. & S. F. Rld. Co. (55 Kan. 258), it was said in the opinion delivered by Mr. Justice Allen :
“The rule that upon a demurrer to the evidence the court will not weigh conflicting testimony, but that, if there is any competent testimony tending to support every material averment of the plaintiff’s petition, the case must be submitted to the jury, is too well established to require comment, or the citation of numerous authorities.”
The court committed no error in overruling the demurrer.
The instructions of the court to the jury correctly state the law applicable to this case, and the issues joined by the pleadings. We find no error committed by the trial court in giving or refusing instructions. Under the pleadings and evidence, the plaintiff was entitled to have judgment upon the verdict for $324 together with interest, and the trial court committed no error in rendering judgment upon the verdict in this case.
The judgment will be affirmed.
Reference
- Full Case Name
- John R. Skinner, as Administrator, and George Thornton and Elizabeth Thornton v. Rumina Mitchell
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Covenant — to satisfy mortgage is “personal.” A covenant to pay off a certain mortgage is a “personal,” and not a “real,” covenant. 2. Appellate Procedure — error in admitting or rejecting evidence not specified, no reversal. A case will not be reversed on account of error in the admission or rejection of evidence, unless such errors are particularly specified by the plaintiff in error. 3. Demurrer to Evidence — overruled where evidence sufficient to justify finding for plaintiff. Where there is enough evidence to justify the jury in finding for the plaintiff, a demurrer to the evidence should be overruled; the court should not weigh conflicting evidence in passing upon a demurrer. 4. Condition in Bond — that proceeds thereof be applied to pay mortgage, mortgage otherwise satisfied, bond enforceable. T. gave M. a bond for the payment of a fixed amount of money at a date certain, the bond providing that such money should be used for the purpose of paying a portion of a note for which T. was primarily liable, which indebtedness was assumed by M. in consideration of the bond; held, that M. may recover the amount of the bond, notwithstanding his payment of the indebtedness for which he had agreed to use the money.