Chipman v. McDonald

• Decision Date: 10 May 1899
• Citation: 9 Kan.App. 882,57 P. 252
• Parties: CHIPMAN v. McDONALD.
• Court: Kansas Court of Appeals

57 P. 252

9 Kan.App. 882

CHIPMAN v. McDONALD.

Court of Appeals of Kansas, Northern Department, Eastern Division

May 10, 1899

Error from district court, Jackson county; Louis A. Myers, Judge.

Action by F. A. Chipman, as receiver of the Bank of Plainville against C. E. McDonald. There was a judgment for defendant and plaintiff brings error. Reversed.

S. N Hawkes, for plaintiff in error.

Hayden & Hayden, for defendant in error.

OPINION

PER CURIAM.

On August 1, 1894, F. A. Chipman, as receiver of the Bank of Plainville, filed his petition, affidavit, and undertaking in replevin for the recovery of the possession of one bay mare known as "Lady Reid," of the value of $250, alleged to be wrongfully detained from the plaintiff by C. E. McDonald. The plaintiff claimed a special ownership in the property by reason of a written contract, in substance a chattel mortgage. He also alleged a demand and refusal to deliver possession of the property. The petition was in the usual form.

The defendant filed an unverified answer, consisting of (1) a general denial; (2) admitting the execution and delivery of the written contract, and alleging that, by mutual agreement, the written contract was rescinded; that at the request of Burke, one of the parties to the contract, the defendant retained possession of the property for the purpose of training the mare for racing purposes; that defendant provided feed, stabling, and care for the mare to the value of $179.50; that plaintiff at all times had notice of the contract under which the mare was kept,- and asked a lien on the property for the amount due for her keeping, in the sum of $179.50, with interest, and for a return of the property. At the trial, by permission of the court, the defendant dismissed his cause of action set out in the second count of his answer. A trial was had before the court, without a jury, and judgment rendered that the defendant have the return of the property, or, in case a return could not be had, that he recover of the plaintiff the value thereof in the sum of $500, with costs of suit. The plaintiff excepted; filed a motion for new trial, which was overruled; and presents the case to this court for review.

The case is presented to this court upon petition in error case-made, and brief of plaintiff in error. There are several formal assignments of error, all of which we deem it unnecessary to comment upon especially, other than to...