Minneapolis Threshing Machine Co. v. Francisco

Citations

• 106 Kan. 704
• 189 P. 981
• 1920 Kan. LEXIS 636

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Verified Answer — No Proof that Plaintiff was Incorporated — Question First Raised in Supreme Court — Objection too Late. Where the incorporation of the plaintiff is alleged in a petition, each and every material averment of which is denied by an answer verified by an affidavit which says that the statements contained in the answer are true, and no evidence is introduced to prove that the plaintiff is incorporated, nor is the attention of the court specifically challenged to the absence of such evidence, and the incorporation of the plaintiff does not appear to have been questioned on the trial, and the question seems to be first raised in the supreme court, a judgment in favor of the plaintiff will not be reversed.</p> <p>2. Same — When Demand is Unnecessary. In an action in replevin, demand is unnecessary where possession by the defendant has been obtained wrongfully.</p> <p>3. Same — Defective Affidavit — Defect Not Called to Attention of Trial Court — Too Late on Appeal. A judgment in an action in replevin will not be reversed on account of a defect in the affidavit therefor, where the defect was not called to the attention of the trial court, and could have been cured by amendment.</p> <p>4. Same — Excluded Evidence — Not Produced on Motion for New Trial. Excluded evidence cannot he considered on appeal where that evidence is not produced on the motion for a new trial.</p> <p>5. Same — Written Contract — Cannot be Varied by Parol Evidence. A written contract cannot be varied, altered or contradicted by proof of an oral agreement on the same subject, made at the same time, and if the oral agreement is made subsequently, there must be a consideration therefor.</p>