Dewey v. Bobbitt

Citations

• 79 Kan. 505
• 100 P. 77
• 1909 Kan. LEXIS 224

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin •—■ Defenses Provable Under a General Denial. In an action for the recovery of specific personal property the defendant, answering by general denial only, may prove any defense whatever to the action. (White v. Gemeny, 47 Kan. 741, 28 Pac. 1011; Street v. Morgan, 64 Kan. 85, 67 Pac. 448.)</p> <p>2. Negotiable Instruments—■Failure of Consideration—Notice. Where the plaintiff’s right of recovery depends upon the nonpayment of a promissory note when due, which note is secured by a chattel mortgage on the property in question, and the plaintiff is an indorsee of the note and assignee of the mortgage, the defendant may prove an entire or partial failure of the consideration of the note (1) if the note was transferred after maturity, or (2) if the plaintiff had notice of the defense before the transfer of the note.</p> <p>3. Replevin—Purchaser of Note and, Mortgage—Failure of Consideration. If, under the rule stated in paragraph 2, the defendant prove an entire failure of the consideration of the note, he is entitled to judgment; if he prove a partial failure only, the plaintiff is entitled to judgment, and the measure of his interest in the property is the difference between the full amount of the note and the sum for which the failure of consideration is proved, provided such difference be not greater than the value of the property in question.</p>