Kilpatrick-Koch Dry-Goods Co. v. Kahn
| Citation | 53 Kan. 274,36 P. 327 |
| Parties | KILPATRICK-KOCH DRY-GOODS CO. v. KAHN et al. |
| Decision Date | 07 April 1894 |
| Court | Kansas Supreme Court |
1. In order that a plaintiff below may obtain a reversal of a judgment for errors in the instructions of the court, the record must show that the plaintiff offered evidence tending to establish every fact essential to his recovery; and where in an action to recover goods claimed to have been fraudulently purchased, substantially all the evidence with reference to the purchaser’s solvency is omitted, the court will not assume that sufficient evidence to establish that fact was offered at the trial.
2. Where a purchaser buys goods with intent to defraud the vendor of their price, and sells them to a third party, it is not necessary that the last-named purchaser should have had notice of the original fraudulent purpose in order to defeat his title, but, in order to protect such subsequent vendee in his purchase, the burden rests on him to show that his purchase was free from fraud, and for a valuable consideration.
3. Where special questions are submitted to the jury, it is error for the court, after conclusion of the arguments, to charge the jury to make their special findings conform to their general verdict. The sole duty of the jury with reference to such questions is to answer them truthfully.
4. The declarations of an agent as to matters outside of his agency are inadmissible against the principal.
Error from district court, Norton county; Louis K. Pratt, Judge.
Action by Kilpatrick-Koch Dry-Goods Company against Kahn Bros Judgment for defendants, and plaintiff brings error. Affirmed.
L. H. Thompson and Ellis & Cook, for plaintiff in error.
C. Angevine, for defendants in error.
On the 4th day of April, 1889, R. D. Morrison, a merchant at Oronoque, Norton county, purchased from the plaintiff in error a bill of goods amounting to $177.65. On the 13th of the same month Morrison sold his entire stock of merchandise to the defendants, Kahn Bros., for cash, and did not pay for these goods. Thereupon the plaintiff brought this action against Morrison and Kahn Bros. to recover the goods, or the value thereof, claiming that Morrison did not intend to pay for the goods when he bought them, but to cheat the plaintiff out of them. The jury found in favor of the defendants. The plaintiff alleges many errors occurring at the trial.
The court instructed the jury that, in order to recover, the plaintiff must show that Morrison purchased the goods with the fraudulent intent never to pay for them, and, "in addition to the above, it would be necessary for the plaintiff to establish that Kahn Bros. had notice of Morrison’s fraudulent intent never to pay for the goods, and to cheat the plaintiff out of the same and their value." It is insisted that this instruction is erroneous. That the plaintiffs may recover on establishing the fact of Morrison’s fraudulent purpose in the original purchase, and that to defeat their claim the burden rests on Kahn Bros. to show that they are bona fide purchasers for value. That it is immaterial whether Kahn Bros. had notice of Morrison’s original fraudulent purpose or not; if they knew or had notice that he was disposing of his entire stock of goods with a general purpose to defraud his creditors, it was sufficient to avoid their title. They are not bona fide purchasers if their title was derived solely through a fraudulent transaction. The burden also rests on the defendants to show their good faith. Wafer v. Bank, 46 Kan. 597, 26 P. 1032, and cases cited; Benj. Sales (6th Ed.) 446 et seq.; Lynch v. Beecher, 38 Conn. 490.
The record recites "that the above special findings of fact were submitted to the jury by the court, and that the said court, at the time the said special findings were so submitted, the said court instructed the said jury orally, and after the general charge had been given to said jury by the said court, and after the argument of counsel for all parties had been fully made and closed, that their answers to the special findings of fact submitted to them by the Kahn Bros. must conform to and be consistent with their general verdict, and the court cautioned the said jury at the same time that unless such answers did so conform they would control the general verdict; to all of which the plaintiff, Kilpatrick-Koch Dry-Goods Company, objected and excepted." The jury rendered a general verdict in favor of the defendants. The first question submitted to them and the answer thereto is as follows:
"Q. When R. D. Morrison bought the goods in controversy from the plaintiff, did he intend to pay for them?
A. Yes.
" While the statement of the court contained a rule of law for the guidance of courts, it was...
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Action v. Fargo & Moorhead Street Railway Company
... ... Co. v. Zimmerman, 61 Kan. 750, 60 P. 1064; ... Kilpatrick-Koch Dry-Goods Co. v. Kahn, 53 Kan. 274, ... 36 P. 327; Special verdicts. Mechanics' Bank v ... ...
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Ditton v. Ed. Purcell
... ... Bank, 42 Miss. 99; ... Wafer v. Harvey County Bank, 46 Kan. 597, 26 P ... 1032; Kilpatrick-Koch Dry Goods Co. v. Kahn, 53 Kan ... 274, 36 P. 327; Reid, M. & Co. v. Bird, 15 Colo.App ... 116, ... ...
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Ditton v. Purcell
...512-516;Leedom v. Ward Co., 38 Mo. App. 425;McLeod v. Bank, 42 Miss. 99;Wafer v. Bank, 46 Kan. 597, 26 Pac. 1032;Kilpatrick & Co. v. Kahn, 53 Kan. 274, 36 Pac. 327;Reid v. Bird, 15 Colo. App. 116, 61 Pac. 353. Alabama holds the contrary. See Spira v. Hornthall, 77 Ala. 137; Roswald v. Imbs ......
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Collett v. Schnell's Estate
... ... 439; Coffeyville Vitrified Brick Co. v. Zimmerman, 61 Kan. 750, 60 P. 1064; Kilpatrick-Koch Dry-Goods Co. v. Kahn, 53 Kan. 274, 36 P. 327; Usher v. Hiatt, 18 Kan. 195; Southwestern Mineral ... ...