Salisbury v. Barton

• Decision Date: 09 November 1901
• Docket Number: 12,235
• Citation: 63 Kan. 552,66 P. 618
• Parties: C. E. SALISBURY et al. v. KIMBER L. BARTON et al
• Court: Kansas Supreme Court

66 P. 618

63 Kan. 552

C. E. SALISBURY et al. v. KIMBER L. BARTON et al

No. 12,235

Supreme Court of Kansas

November 9, 1901

Decided July, 1901.

Error from Cowley district court; W. T. MCBRIDE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. REPLEVIN -- Fraud -- Pleading. In an action in replevin to recover the possession of property from a fraudulent vendee and his grantees, the plaintiff is not required to plead facts showing the fraudulent purchase. It is sufficient if he pleads ownership, right of possession and a wrongful detention by defendants.

2. REPLEVIN -- Evidence -- Reports to Commercial Agencies. Where a retail merchant makes false and fraudulent statements to representatives of commercial agencies for the purpose of establishing a basis of credit for himself, and such statements are incorporated into the books of such agencies and circulated among the wholesale trade, by reason whereof credit is extended to him, it is not error to permit such statements and reports to be introduced in evidence on a trial in an action brought to recover the possession of the goods which it is alleged were sold and delivered on the strength of such statements.

3. REPLEVIN -- Demand Unnecessary. In an action to recover personal property, the possession of which it is claimed was obtained by false and fraudulent representations, a demand is not necessary before commencing the action.

4. REPLEVIN -- Burden of Proof. The burden is upon one claiming to be the purchaser of the property from a fraudulent vendee to prove that he is a bona fide purchaser for a valuable consideration and without notice.

C. L. Brown, J. Mack Love, and Jackson & Noble, for plaintiffs in error.

Stanley, Vermilion & Evans, for defendants in error.

GREENE J. JOHNSTON, SMITH, ELLIS, JJ., concurring.

OPINION

GREENE, J.:

This action was commenced in the district court of Cowley county by defendants in error against plaintiffs in error to recover certain personal property, the possession of which they claimed had been obtained by fraud. A trial was had and a verdict and judgment for plaintiffs below for a return of the property or the value thereof. The defendants below prosecute this proceeding in error.

After the jury had been impaneled to try the cause and the plaintiffs below had made the opening statement of their case, the defendants moved the court to instruct the jury, on the petition and statement so made, to return a verdict for defendants, on the ground that the same failed to show that plaintiffs were entitled to recover in the action. This application was overruled, and this is the first error complained of. The petition alleged that the plaintiffs therein were the owners and entitled to the immediate possession of the property described in the petition, and that the defendants wrongfully detained such possession from them. The statement made by counsel to the court and jury was a general summary of the facts on which plaintiffs intended to rely to establish their right of recovery. The contention of plaintiffs in error is that, as this was an action to recover property, the possession of which plaintiff below claimed, by his oral statement, had been obtained through fraud and misrepresentation, the petition should have stated these facts in such manner that the defendants could have known what they would be called on to meet at the trial. This would require the plaintiff in an action of replevin to plead the evidence which he intended to introduce to prove his right of recovery, instead of the facts which constituted his cause of action. This is not required in any case. The plaintiffs below pleaded the three elements which, if proved, would entitle them to recover--ownership, right of possession, and wrongful detention by the defendants; that is sufficient. It was said in Hoisington v. Armstrong, 22 Kan. 110:

"But all that he is required to set forth in his petition is that he is the owner of the property in controversy, describing it, or that he has a special ownership or interest therein, stating the facts in relation thereto; that he is entitled to the immediate possession of the property; and that the defendant wrongfully detains the same from him."

This principle was again approved by this court in Batchelor v. Walburn, 23 Kan. 733.

It is contended that the court erred in admitting certain evidence offered by the plaintiffs below. This evidence was introduced to show the false and fraudulent statements made by Salisbury & Co., for the purpose of obtaining credit, to representatives of the commercial agencies of R. G. Dun &amp Co. and Bradstreet & Co. These representatives testified, in substance, that they called on Salisbury & Co. for statements of their financial...