Schnavely v. Bishop

• Decision Date: 01 January 1899
• Docket Number: 385
• Citation: 55 P. 667,8 Kan.App. 301
• Parties: HENRY SCHNAVELY et al. v. JAMES BISHOP, as Administrator of the estate of W. W. Hotchkiss, deceased
• Court: Kansas Court of Appeals

55 P. 667

8 Kan.App. 301

HENRY SCHNAVELY et al. v. JAMES BISHOP, as Administrator of the estate of W. W. Hotchkiss, deceased

No. 385

Court of Appeals of Kansas, Northern Department

January 1, 1899

Opinion Filed January 4, 1899.

Error from Morris district court; JAMES HUMPHREY, judge. Affirmed.

Judgment affirmed.

John Maloy, for plaintiffs in error.

Madden Bros., for defendant in error.

OPINION

MCELROY, J.:

This was an action in replevin brought by W. W. Hotchkiss against Henry Schnavely, Benjamin Schlaudecker, A. L. Pullins, E. M Gale, Robert Fleming, J. C. Craig and E. C. Raymond for the recovery of certain personal property. The plaintiff claimed the property by reason of a chattel mortgage executed by Schlaudecker & Schnavely. The answer was a general denial. A trial was had before the court and a jury, which resulted in a verdict for plaintiff. The defendants' motion for a new trial was overruled, and they present the case to this court for review. Since the case was filed in this court Hotchkiss died, and all subsequent proceedings have been had in the name of James Bishop, as administrator of his estate. The plaintiffs in error allege error in the proceedings: (1) That the court erred in its instructions (2) that the verdict of the jury is contrary to the evidence and the law; (3) that the court erred in overruling the defendants' motion for a new trial.

The record discloses that Schlaudecker & Schnavely executed their chattel mortgage on February 13, 1892, to W. W Hotchkiss to secure the payment of $ 125, due one year after date, on one lot of butcher's tools. The mortgage was filed with the register of deeds of Morris county on the 15th day of February. Thereafter Schlaudecker sold his interest in the property to Pullins, who assumed the payment of the mortgage. The business was then conducted in the name of Schnavely & Pullins until the 10th day of April, 1893, when Fleming & Gale purchased and took possession of the business, including the mortgaged property. They continued in possession of the business and property until this action was instituted. Hotchkiss filed an affidavit of renewal on the 19th day of December, 1893, demanded the possession of the property, and commenced this action for its possession. At the trial, Hotchkiss insisted that Fleming & Gale had notice of the mortgage lien at the time they purchased the property, and that they assumed and agreed to pay the same as a part of the purchase-price. The court instructed the jury on the question of notice as follows:

"As to that matter, the law requires, where a party has knowledge of the existence of a chattel mortgage, even though it may not be perfect upon the record, or has notice of the existence of a chattel mortgage -- the law requires him to use due diligence in making inquiry; and charges him with whatever knowledge might have been acquired by such inquiry respecting the rights of the mortgagee under the chattel mortgage."

The plaintiffs in error contend that this instruction is erroneous; that a subsequent purchaser in good...