Aultman & Taylor Machinery Co. v. Schierkolk , 101 Kan. 77 ( 1917 )

The opinion of the court was delivered by

BURCH, J.

The action was one of replevin by a chattel mortgagee for a threshing machine. A demurrer was sustained to the defendant’s evidence, and he appeals.

The controversy was before the court on the occasion of a former appeal, Machinery Co. v. Schierkolk, 95 Kan. 737, 149 Pac. 680. As there indicated, the principal defense was rescission on the ground of fraud. The evidence disclosed that the sale was negotiated at Lincoln, Neb., and was completed by delivery of the engine at Lanham, Neb., the defendant paying the freight from Lincoln to Lanham. The evidence further disclosed no return of the engine to the plaintiff at the place of sale, or offer to return, except a conditional one. Therefore, the defense of rescission failed. (Frick Co. v. Fry, 75 Kan. 396, 89 Pac. 675; Cooper v. Ragsdale, 96 Kan. 772, 153 Pac. 516.) Another defense was that the debt secured by the chattel mortgage had been paid before the action was commenced. The evidence, which need not be recited, failed to sustain the defense.

Certain statements of facts not shown by the -record, made in the defendant’s brief to aid his case, can not of course be considered.

The judgment of the district court is affirmed.