Kennett v. Peters & Co.

• Decision Date: 06 October 1894
• Citation: 54 Kan. 119,37 P. 999
• Court: Kansas Supreme Court
• Parties: HOMER KENNETT v. PETERS & CO. et al

37 P. 999

54 Kan. 119

HOMER KENNETT v. PETERS & CO. et al

Supreme Court of Kansas

October 6, 1894

Error from Clay District Court.

ON the 22d day of September, 1888, Homer Kennett commenced his action against Peters & Co., Elisha Parker, William Parker, and Charles W. Lord, and in his petition alleged:

"Plaintiff says that he is and was the owner and entitled to the possession of 36 head of steers, one and two years old, of the value of $ 850; 29 head of hogs, of the value of $ 260 10 cows, of the value of $ 200; 6 calves, of the value of $ 70; and 2 bulls, of the value of $ 50; all of the total value of $ 1,430. On or about the 11th day of September the defendants unlawfully obtained possession of said property refused to deliver it to plaintiff, and converted it to their own use, to the damage of plaintiff $ 1,500, for which he asks judgment, with interest from September 11, 1888, and costs of suit."

Peters & Co. and Charles W. Lord filed answers containing general denials only. Elisha and William Parker made default. Trial had before the court with a jury, on the 9th day of June, 1890, in Clay county, the venue of the action having been changed from Cloud county. Upon the conclusion of the evidence, the plaintiff moved for an instruction in his favor for a verdict against both defendants, which was refused, and excepted to. The court submitted the case to the jury as to Lord, but instructed that no recovery could be had against Peters & Co. The jury returned the following verdict for the defendants:

"We the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the defendants M. S. Peters and W. G Peters, partners as Peters & Co., and we do find for the defendant Charles W. Lord."

The plaintiff filed motions for a new trial, which were. overruled, and brings the case here.

Judgment affirmed.

Kennett, Peck & Matson, for plaintiff in error.

Ellis & Cook, for defendants in error Peters & Co.

D. C. Chipman, for defendant in error C. W. Lord.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

It is claimed that the petition does not state facts sufficient to constitute a cause of action, and that, under an allegation of general ownership, a chattel mortgage permitting the property to remain in possession of the mortgagor until default in payment of the debt secured thereby is not evidence to sustain the same. The points are well taken. The petition fails to state that the plaintiff was the owner of or in the possession of the property on the date of the conversion; fails to state that the plaintiff was entitled to the immediate possession of the property at the time of the conversion; fails to state the year in which the conversion occurred, and fails to state the special ownership or interest in the property. In trover, plaintiff must either have the possession, or the immediate right of possession, of the property, to entitle him to recover. (Wilson v. Fuller, 9 Kan. 176, 190, 191; Hoisington v. Armstrong, 22 id. 110, 113; Chit. Pl. 167; Owens v. Weedman, 82 Ill. 409, 409-417; Middlesworth v. Sedgwick, 10 Cal. 392.)

The precedents from all the books upon pleadings require that the petition must show that the plaintiff was in the actual possession of the property at the time of the conversion, or, if not in possession, that he was entitled to the immediate possession of the property. (2 Estee, Pl. & Pr., § 2098; Maxw. Code Pl. 637.) Swan on Pleadings expressly states that the petition for the conversion of chattels must allege, "if the plaintiff was not in possession," that he "was entitled to the immediate possession of the property."

The petition does not state that the plaintiff was the owner of the property at the time of the conversion, but merely charges that the conversion was on "the 11th day of September." The year is omitted. (Sawyer v. Robertson, 28 P. 456; Smith v. Force, 31 Minn. 119; Bouv. Inst., § 3538; Cruger v. Railroad Co., 12 N.Y. 190, 191-201.) Cobbey on the Law of Replevin, § 601, says:

"Where the plaintiff claims as sole owner, he must stand or fall on that claim, and cannot, if his alleged title turns out to be invalid as against the true owner, fall back upon an alleged lien. The claim of title is a waiver of any lien, and, in any event, before he can claim the chattel by virtue of the lien, the false claim of title must be abandoned, the title of the true owner conceded, and the claim reduced to one of lien."

Our statute provides that, in an affidavit for an order for the delivery of property, the plaintiff must show that he is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto. (Civil Code, § 177.) The code prescribes that there can be no feigned issues in pleadings, and that all pleadings must be written statements by the parties of the facts constituting their respective claims. (Civil Code, §§ 11, 84.) A petition in replevin, or for conversion, ought to advise the defendant of the nature of the plaintiff's claim to the property, to the end that he can intelligently defend. Of course, the proof must sustain the material allegations of the judgment. (Kern v. Wilson, 73 Iowa 490.)

The plaintiff's interest in the property, upon the evidence offered, was only that of a mortgagee. There are authorities in some of the states holding that, after condition broken the title to mortgaged personal property becomes absolute in the mortgagee, without redemption. Our statute contemplates a different rule. (Wolfley v. Rising, 12 Kan. 535; Kern v. Wilson, supra.) In the mortgages offered, the possession of the property was retained by the mortgagor until condition broken; therefore,...