Boam v. Cohen

Citations

• 94 Kan. 42
• 145 P. 559
• 1915 Kan. LEXIS 40

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Bill of Sale — Intended as Security — Character of Instrument May be Shown by Parol Evidence. An instrument in form of a bill of unconditional sale of personal property but intended as security for the payment of debts is in effect a chattel mortgage and the true character of the instrument may be shown by parol evidence.</p> <p>2. Same — Conversion of Property — Measure of Damages. A bill of sale of a stock of goods and fixtures was given by a firm to one of its creditors who agreed to dispose of the property, pay the firm debts, and return the surplus, if any. The creditor mingled the goods with his own, sold them and sold the fixtures without keeping an account of the proceeds, paid some of the firm debts, and then denied liability for other debts and liability to account to the firm. Held, the firm had the right to treat the goods and fixtures as converted and the measure of damages was the market value of the property when converted less the amount of firm debts the .mortgagee had discharged.</p> <p>3. Pleadings — Duty of Court to Construe — Damages for Conversion — Jury Trial. The court must determine whether or not a case shall be tried by a jury from the pleading. In doing so it should disregard mere characterizations and look to the facts stated. In this case the cause was properly submitted to a jury as one for damages for conversion, although the petition described the bill of sale as given for security, as an assignment for the benefit of creditors, and as creating a trust.</p> <p>4. Trial — Evidence Sustains Verdict. The evidence examined and held to sustain the verdict.</p>