108 Kan. 752 | Kan. | 1921
The opinion of the court was delivered by
The plaintiff commenced this action to replevin an automobile in which he claimed an interest under a chattel mortgage given by George Plomondon, a minor, and Ella Plomondon, his guardian. The property was taken under the writ, and a redelivery bond was given. Judgment was
George Plomondon owned an automobile, and he with Ella Plomondon, his mother and guardian, executed a promissory note for $1,370 payable to the plaintiff and, to secure the payment thereof, gave the plaintiff a chattel mortgage on the automobile. The chattel mortgage was filed for record in Osage county, Oklahoma, where George Plomondon lived. He went to Arkansas City, in Cowley county, and there traded the automobile to the defendant for another automobile and $150 in money. The plaintiff demanded the return of the automobile on which he held the chattel mortgage and offered to give back the $150 and the automobile received by George Plomondon, but the defendant refused to comply with the plaintiff’s demand. This action was then commenced. A copy of the note and of the chattel mortgage were set out in the plaintiff’s petition. The answer was a general denial but was not verified. After the action was commenced, Ella Plomondon paid to the plaintiff all that was owing him on the note. On the trial, a verdict was returned in favor of the plaintiff for $1,495.58, and judgment was rendered thereon. A motion for a new trail was filed by the defendant, and, on the hearing of that motion, the judgment in favor of the plaintiff was set aside, and judgment was entered in favor of Ella Plomondon for the amount of the verdict.
“In the event you find for the plaintiff in estimating plaintiff’s interest in the property in controversy you should find the amount of $1,370.00, together with ten per cent interest thereon from the 1st day of May, 1919.”
To support this contention, it is argued that there was no evidence to prove the value of the automobile; that it might have been of less or more value than that named in the instruction ; and that the instructions should have directed a recovery for the value of the automobile if that value were less than the amount of the note and interest, and for that amount if the value of the automobile were more. No such instruction was requested, and this question does not appear to have been presented to the trial court in any manner whatever. From
The judgment was—
“That the plaintiff have and recover from the defendant the immediate possession of one Chandler Dispatch touring car, car No. 55494, and in the event that possession of said car is not delivered to the plaintiff that he have and recover from the' defendant the sum of $1,495.50 with interest thereon at the rate of 10 per cent per annum and the costs of this action.”
But for the theory on which the action was tried, the judgment might have been different. The plaintiff was entitled to recover, and, following the assumption that seems to have been followed on the trial, the defendant cannot complain of the judgment that was rendered.
The judgment is affirmed.