Miller v. McElwain

• Decision Date: 01 July 1893
• Citation: 52 Kan. 91,34 P. 396
• Parties: VERNON J. MILLER v. A. E. MCELWAIN
• Court: Kansas Supreme Court

34 P. 396

52 Kan. 91

VERNON J. MILLER v. A. E. MCELWAIN

Supreme Court of Kansas

July 1, 1893

Error from Barber District Court.

ACTION by Miller against McElwain. Judgment for defendant at the September term, 1889. The plaintiff comes here. The opinion states the facts.

Judgment reversed and cause remanded.

John A Murray, for plaintiff in error:

Instruction No. 4 is manifestly erroneous, because, if the note had been paid, and by reason of that the mortgage satisfied, that was a matter of defense, and must be proven, and the burden of proving it was upon the defendant. When the plaintiff introduced his chattel mortgage and note, together with renewal affidavit, he made, after identifying the cattle, a prima facie case. It is a well-settled rule that payment is a special defense, and must be proven by defendant, and in every other kind of a case must be specially pleaded before proof thereof is admissible. For the foregoing reasons instruction No. 5 is also erroneous.

The $ 417 mortgage is not set out in the original petition and no claim made under it; hence the claim under it is admitted by the pleadings, and judgment should have been rendered accordingly for the plaintiff. Brookover v. Esterly, 12 Kan 149; Cooper v. Machine Co., 37 id. 231.

Thad. G. Cutlip, and S. L. Overstreet, for defendant in error:

Where a chattel mortgagee takes possession of the mortgaged property and does not in good faith advertise and sell it, according to the terms of the mortgage or the statute, he is responsible for its actual cash value at the time and place of taking possession, and the same should have been sold and the proceeds credited on the note. Denny v. Faulkner, 22 Kan. 89.

Miller took 18 head of cattle from Hickman under the mortgage, and did not sell them, as required by the terms of the mortgage or the statute, and was therefore responsible for their actual cash value, and the jury found that these cattle were worth not less than the amount due on the $ 400 note. A part of this note had been paid, if not all of it, before the commencement of this suit; and instruction No. 4 directed the jury to find whether the value of the 18 head of cattle exceeded the amount due on the note. The jury did not answer question 1, and necessarily found that the 18 head of cattle. were at least equal in value to the amount due on the note. Plaintiff failed to show that the cattle replevied from McElwain were included in the chattel mortgage from Green to S. G. Miller, and hence the fifth instruction was the law of the case.

The court properly instructed the jury that the burden of proof rested upon the plaintiff to show that the cattle replevied in this action were the cattle covered by the mortgage executed by E. D. Green to S. G. Miller. This the plaintiff failed to show, and the jury found against the plaintiff on this point. This is not raised upon the appeal, and is, therefore, not before the appellate court for consideration.

HORTON, C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Action in replevin, Vernon J. Miller, the plaintiff, claiming special ownership in certain cattle, and the immediate possession thereof by virtue of two chattel mortgages--one executed on the 5th day of August, 1886, by E. D. Green to S G. Miller, to secure the payment of $ 417.85, but filed August 21, 1886, and the other given by...