Elliott v. Parlin & Orendorff

Citations

• 71 Kan. 665
• 81 P. 500
• 1905 Kan. LEXIS 206

Syllabus

<p>. SYLLABUS BY THE COURT.</p> <p>1. Homesteads- — Attachment■—-Burden of Proving Abandonment. When in an action an attachment is levied upon real estate that had, at a prior time, long been the homestead of the defendant, on the ground that the defendant has abandoned the homestead and become a non-resident of the state, and the defendant files a motion to dissolve the attachment, alleging that the grounds set forth in the affidavit for attachment are false and untrue, the burden of proof is on the plaintiff to establish, by positive and clear evidence, that the defendant, with his family, has abandoned the homestead and become a non-resident of the state. Held, that the evidence in this case does not establish these facts.</p> <p>2. Foreign Corporations — Sale—Delivery to Carrier — Instructions. Where a non-resident corporation begins an action in this state, and the issue raised by answer whether the plaintiff has complied with certain provisions of the corporation laws of the state — section 1283 of the General Statutes of 1901 — and the evidence shows that the plaintiff, at the time of the commencement of the action and for years prior thereto, had five men in its employ traveling over the state of Kansas and obtaining from implement dealers in this state contracts that provided that the title and right to possession of the goods shipped under the contract from Kansas City, Mo., to the dealer in Kansas should remain in the corporation until paid for, it not being contemplated that they should be paid for until some time after the goods were received in Kansas, and the corporation thereafter sent agents to Kansas to settle and receive payment for the goods, it is error for the trial court to assume in the instructions that, although the dealer in Kansas contracted to, and did, pay the freight on the goods from Kansas City, Mo., the goods were delivered by the corporation to the carrier in Kansas City as the property of the dealer in Kansas.</p> <p>3. --- “Doing