Woodman v. Hunter

• Decision Date: 05 May 1894
• Citation: 53 Kan. 393,36 P. 713
• Parties: WOODMAN v. HUNTER.
• Court: Kansas Supreme Court

36 P. 713

53 Kan. 393

WOODMAN v. HUNTER.

Supreme Court of Kansas

May 5, 1894

Syllabus

1. Hearsay testimony alone is not sufficient to uphold a judgment.

2. A mortgagee of personal property, who surrenders the Lote secured, and cancels the mortgage, in consideration of the note of a third party, secured by a new mortgage, including new and different security, without the knowledge or consent of the original mortgagor, is bound by his own bargain, and cannot thereafter resort to the first mortgage as security for the debt. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from district court, Republic county; F. W. Sturges, Judge.

Action by Richard Hunter against Joseph Woodman. Judgment for plaintiff, and defendant brings error. Reversed.

A. H. Ellis, for plaintiff in error.

M. I. Cooper, for defendant in error.

OPINION

ALLEN, J.

Richard Hunter, as plaintiff, brought this action to recover certain livery stock, under a chattel mortgage, a copy of which was attached to the amended petition, and which was attached to the amended petition and which was executed by J. R. Prentiss on the 14th day of August, 1888. Woodman, the defendant below, was in possession of the property, claiming it by virtue of a chattel mortgage executed to him by Joseph Jones on the 2d day of November, 1887. In the plaintiff’s amended petition, there is no reference to any other claim to the property in controversy than that under the mortgage executed by Prentiss. On the trial the plaintiff, over the objection of the defendant, offered in evidence chattel mortgages as follows: (1) From Joseph Woodman and S. G. Robertson to William Hill, dated August 10, 1887, for $600, filed on same day, and indorsed: "Cancelled 8/14, 1888. Rich’d Hunter." (2) Mortgage from Joseph Jones to Joseph Woodman, dated November 2, 1887, filed for record November 14, 1887, to secure $1,893.00. (3) Mortgage signed by J. R. Prentiss and H. J. Prentiss to Richard Hunter, dated August 6, 1888, for $693.80. (4) Mortgage from J. R. Prentiss to Richard Hunter, dated August 6, 1888, for $713.80. It was shown on the trial that the first named mortgage, from Woodman and Robertson to Hill, was sold by Hill to Hunter, and that Woodman requested Hunter to make the purchase. When the Hill mortgage became due, Prentiss executed his own note, secured by mortgage on the same stock included in the first mortgage, and some other, also. This transaction was without any consultation with Woodman. The last mortgage, given by Prentiss and Hunter, was merely an exchange of securities for the purpose of including $20 more, which it was claimed by Hunter had been omitted by mistake. Over the objection of the defendant...