McMullen v. Carson

• Decision Date: 05 March 1892
• Citation: McMullen v. Carson, 48 Kan. 263, 29 P. 317 (Kan. 1892)
• Parties: ED. J. MCMULLEN et al, v. WM. GEDDES CARSON
• Court: Kansas Supreme Court

29 P. 317

48 Kan. 263

ED. J. MCMULLEN et al, v. WM. GEDDES CARSON

Supreme Court of Kansas

March 5, 1892

Error from Cowley District Court.

THE facts are stated in the opinion.

Judgment reversed.

J. F McMullen, for plaintiffs in error.

W. E White, for defendant in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

This was an action to recover damages for the failure of title to a traction engine alleged to have been purchased by Wm. Geddes Carson from Ed. J. McMullen and John A. Smith, as partners, doing business under the name of Ed. J. McMullen & Co. The facts in relation to the transaction may be briefly stated, as follows: A chattel-mortgage sale of the engine in question was advertised to take place at Oxford, in Sumner county, on the 13th day of December, 1887, under a mortgage held by the Oxford Bank. The plaintiff below arrived at Oxford just after the property had been sold to John A. Smith, for the plaintiffs in error, who held a chattel mortgage given subsequently to that of the Oxford Bank upon the same property. Smith gave J. L. Bowdish, the representative of the bank, a check for $ 56.89, being the amount due the bank on its claim. Negotiations were then commenced between Carson, Smith, and Bowdish, looking to the sale of the engine to the first-named party. This was consummated by Carson agreeing to pay the sum of $ 275 for the engine, that sum being the amount McMullen & Co. had invested in the property. Before the transaction was completed, Smith left Oxford for Winfield, leaving Bowdish to complete the business. Carson paid $ 200 in cash and gave his note to the order of J. L. Bowdish for $ 75, and it seems that it was then understood that McMullen & Co. were to assign to Carson their note and chattel mortgage which covered this and other property. Carson demanded a bill of sale of the engine, and being unacquainted with McMullen & Co., asked for one of the bank, which was given, for $ 56.89. The cash payment and note were transmitted to McMullen & Co. at Winfield, the same day; and soon after they assigned to Carson their chattel mortgage and sent a copy of the same, duly assigned, to Bowdish, at Oxford, who delivered it to Carson. On the 27th day of June, 1888, a prior mortgagee commenced an action in replevin against Carson to recover the engine. As soon as summons was served upon him, he notified Bowdish and the Oxford Bank of the suit, and it seems they promised to defend the same, but did not; and a judgment was recovered by default against Carson, and an order was issued upon such judgment to the sheriff of Cowley county, who made return that he had taken possession of the engine and delivered the same to the plaintiff in the replevin action, and collected the costs from the defendant.

This action was commenced originally against the Oxford Bank, J L. Bowdish, and the plaintiffs in error. Carson alleged in his petition the purchase of the engine, the failure of title, and the judgment of the prior mortgagee, and asked for a judgment against the defendants for the purchase-money and the amount paid for repairs while the engine was in his possession. McMullen & Co. answered that they sold to Carson the chattel mortgage and debt thereby secured,...