Jones v. Annis

• Decision Date: 05 December 1891
• Citation: 47 Kan. 478,28 P. 156
• Parties: JOHN P. JONES v. E. A. ANNIS
• Court: Kansas Supreme Court

28 P. 156

47 Kan. 478

JOHN P. JONES v. E. A. ANNIS

Supreme Court of Kansas

December 5, 1891

Error from Comanche District Court.

REPLEVIN. Judgment for plaintiff, Annis, at the November term, 1888. The defendant, Jones, comes to this court. The facts appear in the opinion.

Judgment reversed and cause remanded.

Ben Howarth, and W. S. Denton, for plaintiff in error.

C. O Blake, and Ady, Peters & Nicholson, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action of replevin, brought in the district court of Comanche county, on December 13, 1887, by E. A. Annis against John P. Jones, for the recovery of eight cows and two bulls, of the alleged value in the aggregate of $ 455. The defendant answered, interposing a general denial, and also alleging substantially as follows: That all his connection with the cattle was as cashier and agent of the First National Bank of Coldwater, a corporation, and that the bank had the right to the possession of the cattle because of the following alleged facts: On May 12, 1887, Annis executed a promissory note to John P. Jones, cashier as aforesaid, for $ 148, with interest at the rate of 12 per cent. per annum, due in 60 days after date; and also executed a chattel mortgage to the same party upon the aforesaid cattle, to secure the aforesaid note; that the chattel mortgage contains, among other stipulations, the following:

"If default shall be made in payment of said sum of money [the mortgage debt] or any part thereof, when the same shall become due and payable, or if said party of the second part [John P. Jones, cashier] shall at any time deem himself insecure, then and thenceforth it shall be lawful for said party of the second part, his executors or assigns or his authorized agents, to take into his possession said goods and chattels wherever the same may be found, and sell the same at public or private sale, and after satisfying the sum of money hereby secured and the interest thereon, and all costs, charges and expenses incurred, out of the proceeds of said sale, he shall return the surplus to the said party of the first part, or his legal representatives."

That the note became due and was not paid, and the defendant and the bank, believing that the bank, as the owner and holder of the mortgage debt, was insecure, did, on November 30, 1887, take the possession of the mortgaged property for the bank. The plaintiff replied by filing a general denial. A trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff, and assessed his damages at $ 77, and judgment was rendered that the plaintiff retain the possession of the cattle and recover the aforesaid damages and costs; and the defendant, as plaintiff in error, brings the case to this court for review.

According to the pleadings and the evidence, the mortgage debt was due and unpaid at the time when the defendant and the bank took the mortgaged property into their possession, and it does not appear that the debt has ever been paid; and these parties believed that the mortgage creditor was insecure, and probably as a fact such insecurity really existed. The mortgage covered all the property taken by the defendant and the bank, except perhaps two, or possibly three, cows; and the plaintiff, Annis, when he replevied the same, obtained the possession of all the property taken except two cows which had previously been disposed of, and he still retains the possession of the replevied property. It would therefore seem that the defendant ought to have recovered a judgment in the action in the alternative for all the replevied property except the two or three cows not covered by the mortgage; or the value of the bank's interest therein, to wit, the amount still remaining due and unpaid on the mortgage, leaving the plaintiff to retain...