Burdett v. Surdez
| Decision Date | 06 March 1915 |
| Docket Number | 19294 |
| Citation | 94 Kan. 494,146 P. 1025 |
| Parties | BURDETT v. SURDEZ ET AL. |
| Court | Kansas Supreme Court |
In an action of replevin for the recovery of a team of mules, the contention on one side was that a bank check given in payment was not good and was not accepted as payment, and on the other side that the check was received as payment in satisfaction of the debt, and, further, that the plaintiff who accepted the check had brought the action of replevin not on his own account, but for the benefit of another party and was conniving with that party to defraud the defendant. Upon the pleadings and evidence it is held that the issue of fraud was fairly in the case, and that the trial court was warranted in giving an instruction to the jury on the subject.
The bringing of an action to recover personal property by one who has no interest in it at the instance of an outsider to aid him in effecting a wrong constitutes a fraud on the defendant.
Appeal from District Court, Nemaha County.
Action by George Burdett against Joseph Surdez and others. From judgment for defendants, plaintiff appeals. Affirmed.
Emery & Emery, of Seneca, and Crane & Woodburn Bros., of Holton for appellant.
Wells & Wells, of Seneca, for appellees.
George Burdett brought this action against Joseph Surdez to recover possession of a team of mules. In his petition he alleged, substantially, that on or about May 20, 1912, C. C. Robbins executed and delivered to him a promissory note whereby Rob bins promised to pay to him or his order $400; that as security for the payment of the note Robbins gave a chattel mortgage on certain property, including the mules in question, providing, among other things, that should Robbins attempt to sell or dispose of the property he should become entitled to its immediate possession; and that the note is wholly unpaid except for the sum of $50. Plaintiff further alleged that Robbins had attempted to sell the property to defendant Joseph Surdez, and he therefore asked for the possession of the mules and $50 damages for their unlawful detention and costs of this action. Joseph Surdez answered, and by way of cross-petition alleged that on or about October 9, 1912, he sold a team of mules to Eugene Van Buskirk as agent of the Edgetown Live Stock Company, a copartnership composed of William J., Harry, and Frank Kaul, and accepted the check of the company for $350 in payment; that the mules were sold to Van Buskirk after Van Buskirk had examined them, particularly the eyes of one of them, which Surdez claims he told Van Buskirk were affected with some kind of fever, who then expressed satisfaction with them; that on the same day he purchased of Robbins the team of mules involved herein, and gave in payment therefor the check of the Edgetown Live Stock Company; that Robbins sold the mules to him after plaintiff had been consulted and had approved the check given and accepted in payment; and that later Robbins had given to the plaintiff and he had accepted the check in satisfaction of the amount remaining due on the note and mortgage. Surdez further alleged that about two days later plaintiff endeavored to collect on the check, and it was protested and not paid, the company giving as a reason that one of the mules purchased from Surdez was blind, and also that plaintiff was induced by the Edgetown Live Stock Company to commence this action to accomplish a purpose of its own; that the company was paying the expense of the litigation, and was the real party in interest. Surdez therefore asked that the live stock company and Van Buskirk be made parties to the action. Plaintiff later amended his petition to include the additional parties, and they were personally summoned. The Edgetown Live Stock Company moved to set aside the summons, but was overruled, and neither the company nor Van Buskirk made further appearance in the action. On the trial the jury found in favor of Surdez, and, overruling plaintiff’s motion for a new trial, judgment was accordingly given. Burdett appeals.
Complaint is made of instructions that were given and of the refusal of some that were requested. It is insisted that the jury should have been instructed that under the evidence and the law the plaintiff was entitled to the...
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Commercial Credit Co. v. Brown
... ... would clearly defeat the purpose of the Code. At the time of ... trial Imes was the real plaintiff. In the case of Burdett ... v. Surdez, 94 Kan. 494, page 498, 146 P. 1025, 1026, ... this court said: "It is not a case of a party having a ... cause of action entering ... ...
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The Brown-Crummer Investment Company v. The Bankers Service Company
... ... of an obligation to pay money. The case of Shepard v ... Allen is illustrative. So is the case of Burdett v ... Surdez, 94 Kan. 494, 146 P. 1025. The inference from the ... facts, however, is one of fact, to be drawn by the jury, or ... by the court ... ...