Printable Format16-108. Want of consideration as defense. The want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith.
History: G.S. 1868, ch. 21, ยง 8; October 31; R.S. 1923, 16-108.
Law Review and Bar Journal References:
Admissibility of parol evidence to show true consideration mentioned in survey of Kansas contract law, 21 K.L.R. 137, 146 (1972).
CASE ANNOTATIONS
1. Part payment no consideration for oral promise to reduce interest. Dudley v. Reynolds, 1 Kan. 285.
2. Guarantee of right to homestead sufficient consideration for note. Moore v. McIntosh, 6 Kan. 39.
3. Holder of nonnegotiable note not "innocent holder" under this section. Graham v. Wilson, 6 Kan. 489, 499.
4. Agreement to extend time of note sufficient consideration for guarantee. Fuller v. Scott, 8 Kan. 25, 34.
5. A void patent is not a sufficient consideration for note. First National Bank v. Peck, 8 Kan. 660, 664.
6. Endorsement of promise to pay held sufficient consideration for contract. Irwin v. Thomas, 12 Kan. 93.
7. Lack of consideration between initial parties; presumption not overthrown. Rahm v. Bridge Manufactory, 16 Kan. 530.
8. Rent abates on destruction of substantial part of property. Whitaker v. Howley, 25 Kan. 674, 687.
9. Parol evidence admissible to show failure of consideration. Dodge v. Oatis, 27 Kan. 762, 763.
10. Condition of machine may be set up to defeat note. Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476, 486.
11. Partial failure of consideration does not wholly invalidate contract. Mfg. Co. v. Lewis, 30 Kan. 541, 1 P. 812.
12. Waiver of irregularities in contract; settlement binding. Wood v. Dickinson, 34 Kan. 137, 8 P. 205.
13. Guaranty without consideration is void. Briggs v. Latham, 36 Kan. 205, 13 P. 129.
14. Part payment of note no consideration for extension of time. Ingels v. Sutliff, 36 Kan. 444, 13 P. 828.
15. Notice of failure of machine to work waived by agent. Acker v. Kimmie, 37 Kan. 276, 15 P. 248.
16. Part payment for services is acknowledgment of liability. St. L., Ft. S. and W. Rld. Co. v. Tiernan, 37 Kan. 606, 628, 15 P. 544.
17. Void deed not good consideration for note and mortgage. Sutherland v. Bell, 39 Kan. 663, 18 P. 817.
18. A promissory note imports a consideration. Hoover v. Hoover's Estate, 104 Kan. 635, 638, 180 P. 275.
19. Want of consideration must be established by preponderance of evidence. Drake v. Seck, 116 Kan. 717, 229 P. 67.
20. Weight of evidence is for jury's determination. State Bank v. Weiser, 117 Kan. 389, 391, 232 P. 613; National Bank v. Williams, 117 Kan. 501, 503, 232 P. 252.
21. Burden of proving lack of consideration is upon party attacking deed. Chisholm v. Snider, 145 Kan. 573, 579, 66 P.2d 573.
22. Want of consideration is affirmative defense; evidence insufficient to overcome presumption. Carver v. Main, 146 Kan. 251, 256, 69 P.2d 681.
23. Holder acquiring note from insurance company taken illegally for premium; knowledge; defense. Fidelity Savings State Bank v. Grimes, 156 Kan. 55, 58, 131 P.2d 894.
24. Cited; oil and gas lease within purview of K.S.A. 16-107. Riffel v. Dieter, 159 Kan. 628, 636, 157 P.2d 831.
25. Want of consideration is affirmative defense; may not be inferred or presumed. Palmer v. The Land & Power Co., 172 Kan. 231, 238, 239 P.2d 960.
26. Presumption of consideration is presumption of fact; where consideration controverted, question is one for jury. Ferraro v. Fink, 191 Kan. 53, 56, 379 P.2d 266.
27. Parol evidence admissible to show want or failure of consideration stated in written contract. First Construction Co., Inc., v. Gallup, 204 Kan. 73, 75, 460 P.2d 594.
28. Option contract without consideration held offer of sale; conditional; offer withdrawn. Berryman v. Kmoch, 221 Kan. 304, 306, 559 P.2d 790.
29. Word "imports" in K.S.A. 16-107 does not mean "absolutely exists"; lack of consideration is affirmative defense. State ex rel. Ludwick v. Bryant, 237 Kan. 47, 50, 697 P.2d 858 (1985).
30. Whether existence of written promissory notes shifts evidentiary burden in summary judgment motion examined. Herr v. McCormick Grain-The Heiman Company, Inc., 841 F. Supp. 1500, 1508 (1993).
31. Whether defendants had right to revoke contract based on lack of consideration examined. First Nat. Bankshares of Beloit, Inc. v. Geisel, 853 F. Supp. 1344, 1352 (1994).
32. Issue regarding whether merchandiser's continued employment constituted adequate consideration for promissory notes precluded summary judgment. Herr v. Heiman, 75 F.3d 1509, 1515 (1996).