upon the answer, without requiring the defendant to state his construction thereof. If the answer was indefinite or uncertain or inconsistent, the court should have required it to be amended. The construction given to the answer by the defendant, and the action of the court in announcing that it would hold the defendant to the construction so given, tended to inform the plaintiffs that the amended answer was limited and qualified by such construction, and therefore the plaintiffs had the right to suppose and rely upon the fact that the defense was a rescission of the contract on account of the breach of warranty, and such damages as the defendant might recover after the repudiation of the contract. "It is a general proposition that on a sale of a personal chattel with a warranty, in case the chattel turns out not to be of the kind or quality represented, the purchaser may have one of two remedies: He may rescind the contract and return the property. The effect of such action is to place the parties in the same condition as they were before the purchase, and whatever has been paid or delivered by either is to be returned, and it or its value may be recovered in an action therefor. This is one remedy. The other is that the purchaser may affirm the contract, retain the property, and recover damages from the vendor for a breach of his warranty. These are the two and the only two remedies that the purchaser has under the circumstances. He may not set aside an express contract and have the courts create a new and implied one. He must either rest on the contract as made, or rescind and repudiate it." Weybrich v. Harris, 1 PAC. REP. 271.

In the case at bar, under the evidence, the purchaser retained the machine and used it during a part of two seasons. The court instructed the jury that the defendant had abandoned his remedy by rescission of the contract, and was only entitled to recover damages from the vendors for the breach of their warranty.

Now, the answer, as construed by the defendant, set up the defense of rescission only, with such damages as he was entitled to recover thereunder. The answer as construed allowed only proof of rescission of the contract, and the damages therefor; yet the jury were directed upon another and entirely different theory of the case. The court ignored the answer of the defendant as construed, and charged the jury that the defendant claimed a warranty, a breach thereof, and damages by reason of the same.

A defendant cannot plead one defense, and then, without amending his answer, succeed upon another and different defense. The error of the court in the disposition of the case was erroneous, misleading, and prejudicial. There were also other errors occurring upon the trial, but we need not comment thereon, as a new trial is to be had, and it is very likely that these will be avoided. It is best, however, to say that if the defendant relies upon a written or printed warranty, no oral evidence of it is permissible, unless the warranty is lost or

the plaintiffs refuse to give to the defendant an inspection or copy thereof, upon demand, as provided for in section 368 of the Code. The judgment of the district court will be reversed, and the cause remanded for a new trial.

VALENTINE, J., concurring.

HURD, J., not sitting in the case.

(32 Kan. 73)

BAILEY V. KANSAS MANUF'G Co.

Filed May, 1884.

1. Where an insolvent person executed two chattel mortgages in good faith for a valuable consideration for the benefit of certain creditors, and such mortgages were duly filed, and thereafter, and upon the next day, a deed of voluntary assignment for the benefit of all his creditors was executed by him, the execution of such instruments does not constitute a single transaction, nor do such chattel mortgages and the assignment defeat each other, as each is valid.

2. If the wife give her money or other property to her husband to assist him in his business, he will not be permitted, as against his creditors, to give it back to her, when insolvent, to save something for his wife and family. If, however, the wife loan her husband money, although no time be fixed for its repayment, and although no express promise to repay is made, yet, if the circumstances attending the receipt of the money by the husband are such as to prove that they dealt with each other as debtor and creditor, the husband may pay the indebtedness, or secure the indebtedness by a chattel mortgage upon his property, and such payment, or such chattel mortgage, will be no fraud upon his creditors.

Error from Atchison county.

On January 27, 1882, the Kansas Manufacturing Company brought its action in the district court of Atchison county against A. Macdonald on seven promissory notes not then due, and procured an order of attachment, which was levied on a stock of hardware. The stock of hardware was mortgaged by A. Macdonald, and the mortgage was assigned to J. W. Bailey. On July 7, 1882, J. W. Bailey filed his motion to be allowed to interplead. The court sustained the motion, and on August 5, 1882, the interplea was filed, setting up a note executed by A. Macdonald to his wife, Maria Macdonald, for $1,500, dated April 28, 1879, and also a chattel mortgage executed January 19, 1882, by A. Macdonald to his wife, to secure said note, which chattel mortgage was filed for record on the same day, at 5 o'clock P. M. The interplea also set out the attachment proceedings against A. Macdonald, and alleged that the latter was indebted to the Weir Plow Company, and that on February 16, 1882, Maria Macdonald, to secure such indebtedness as far as the same would go, assigned the

note and mortgage to J. W. Bailey, who was the agent of the Weir Plow Company, and who took the note and mortgage to secure its claim. The prayer of the interplea was for judgment against A. Macdonald for $1,500, with interest, and that the chattel mortgage should be declared a first lien upon the property therein described. On August 10, 1882, the Kansas Manufacturing Company filed its answer to the interplea of J. W. Bailey, and thereafter J. W. Bailey filed a general reply to this answer. The action was tried at the June term of the court for 1883, to the court, a jury being waived. Upon the evidence the court found the following conclusions of fact:

"(1) For fifteen years or more last past the defendant and Maria Macdonald have been husband and wife, residing at Atchison, Kansas, with their children; and during said time, up to the spring of 1879, the defendant was a clerk in the hardware business. About 14 years ago said Maria Macdonald received about $1,000 as her share of her father's estate, and part of the same was invested in lots in Atchison for a homestead, and the title the eto placed in her name. The homestead was improved in part with said money, and in part by means derived from defendant's earnings. No account was ever kept of the money furnished by either, the making of the improvements and the keeping of the family being contributed to from the funds of either, which were used in common, the defendant's earnings being little, if any, more than sufficient to support his family while he was a clerk. Some years later she received about $1,000 from a brother, and an 80-acre tract of land in this county was bought for $600. Some lots in Atchison were also bought in her name for $300. In 1879 or in 1880 she also received between $500 and $1,000 from her brother-in-law. No account was ever kept, up to 1882, between the defendant and his wife, as to the sum or sums furnished by either, for any purpose; but all of the investments in real estate, except one lot, were made in her name.

"(2) About March, 1879, said homestead was sold, and the defendant, with the consent of his wife, took $1,500 of the proceeds, and he embarked in the hardware business on his own account. This was all the capital that he then had, but between that time and January, 1882, he received $1,480 more, being of the proceeds of the sale of said 80-acre tract and said lot in Atchison that stood in his wife's name, all of which real estate was sold at a large profit, more than double its purchase price. This aggregate of $1,480 was received in payment at different times, each of which was entered upon the cash-book of the business as received from him, and placed to his credit upon the ledger of the business. His wife knew that said money, derived from the sale of said homestead and other real estate, constituted his only capital, and that he was using the same in his own name, without any credit to her whatever; and the defendant made no express promise to pay said money back to his wife, except as hereinafter stated.

"(3) In 1881 another lot in Atchison was purchased in her name, with a view of building a residence thereon for a home. Only $50 was paid on the lot, but a contract was entered into with Cole and Shafer, by which they agreed to build a house on said lot for $825, and to take in payment hardware out of the defendant's store. They proceeded with said building, and up to January, 1882, they had obtained hardware from the defendant's store amounting to $639.80; but said building was not completed. Cole and Shafer were debited with the amount of said hardware.

"(4) In the fall of 1881 the defendant became embarrassed. He had purchased a large stock, and was indebted therefor about $10,000. He went east, and to neighboring cities where he was indebted. He was then insolv

ent; but he misrepresented his financial condition to his creditors, and procured from most of them an extension of time.

"(5) Early in January, 1882, the defendant contemplated a failure in business, and he and his book-keeper set about to save something for the defendant's wife and family. A journal and a ledger account was opened with Maria Macdonald, January 6, 1882, and the several sums, aggregating $1,480, appearing in the cash-book as received from A. Macdonald, and journalized and posted to his credit, were also journalized and posted to the credit of Maria Macdonald; the journal and entries both stating the dates as in the original entries in the cash-book, which were not altered, and the journal entry having an explanatory note to the effect that the original credits were erroneously made. The amount of Cole and Shafer's account was also debited to said Maria Macdonald. At the same time, the said promissory note (nonnegotiable in form) for $1,500, a copy of which is set forth in the interplea of J. W. Bailey, was drawn up and signed by the defendant, and dated back to about the time that the defendant engaged in business; and his wife made the indorsement thereon as follows: This note is renewed for two years more; but with interest. [Signed] MARIA MACDONALD.' Said note was intended to cover the amount of money derived from the sale of said homestead, and put into the business at the beginning, in 1879.

"(6) On January 17 or 18, 1882, said Maria Macdonald went to A. F. Martin, an attorney at law at Atchison, and handed him said promissory note, and told him she wanted it secured by a chattel mortgage on the stock of goods of the defendant. At said time A. F. Martin had in his hands for collection a claim of the Gibbs & Sterrett Manufacturing Company against said A. Macdonald for $116.60. Said A. F. Martin, on or about January 17 or 18, 1882, conferred with said said A. Macdonald, who talked about making a general assignment for the benefit of his creditors. He, however, agreed to execute chattel mortgages securing said claims, and on January 18, 1882, said A. F. Martin drew up the chattel mortgage of that date to Maria Macdonald, a copy of which (except the schedule) is annexed to the interplea of J. W. Bailey, herein. A full schedule of the stock was annexed to the original mortgage. Said mortgage was not signed and executed by the defendant until the afternoon of January 19, 1882. At the same time (January 19, 1882) the defendant executed another mortgage of that date to said Gibbs & Sterrett Manufacturing Company upon said stock of goods, to secure its claim. Said mortgage had no schedule thereto, but referred to the schedule attached to said mortgage to Maria Macdonald. Both mortgages were handed to said A. F. Martin, and he took them to the office of the register of deeds of this county and had the same filed in said office at 5 o'clock P. M. of said day. The schedule described by items the entire stock of goods, and everything connected with the business, showing a total valuation of $12,357.81, and the defendant had no other tangible property except household goods and a few other articles exempt from legal process. But the notes, book-accounts, and other choses in action were not included in said schedule.

"(7) Before the final execution and delivery of said mortgages by the defendant to said A. F. Martin, for said Maria Macdonald and the Gibbs & Sterrett Manufacturing Company, respectively, it had been fully agreed between the defendant and said A. F. Martin that said defendant should make a general assignment of all his property to said A. F. Martin, as assignee, for the benefit of all of the defendant's creditors, and early the next morning, January 20, 1882, the defendant executed such deed of assignment to said A. F. Martin, conveying to said A. F. Martin all of defendant's property, real and personal, including notes, book-accounts, and choses in action, and said stock of goods, in trust for the equal benefit of all the defendant's creditors. Said A. F. Martin filed said deed of assignment in the office of register of deeds, for record, at 9 o'clock A. M. on said twentieth day of January, 1882,

and he immediately got the key of said store from the defendant and took possession of said stock of goods as such assignee. In fact, the defendant closed the store on the evening of January 19, 1882, with a view to said assignment, and did not open it again next morning, but turned the key over to his assignee.

"(8) About ten days or two weeks after the assignment, said Maria Macdonald indorsed said promissory note in blank and handed it to said A. F. Martin, so that it might be used in any way that was deemed for the best interest of the defendant and said Maria Macdonald.

"(9) The defendant was indebted to the Weir Plow Company in the sum of about $1,800; which was past due on February 16, 1882. J. W. Bailey, who is and was the general agent of said company, entered into negotiations with the defendant and his wife, and said A. F. Martin, for the transfer of said note to him. Neither he nor the other parties then knew the amount of said indebtedness, and it was finally agreed that said note should be assigned to said J. W. Bailey, to secure said indebtedness to the Weir Plow Company; and that if the proceeds of the note were more than sufficient to pay the indebtedness to the company, then the balance was to be paid to said Maria Macdonald. Thereupon, said A. F. Macdonald, with the consent of said Maria Macdonald, wrote over her signature, upon the back of said note, the words Pay to the order of J. W. Bailey,' and said note was then handed to said J. W. Bailey, and he handed to Mills & Wells, his attorneys, for collection, and also immediately employed said A. F. Martin as attorney to assist therein. At the time of said assignment to J. W. Bailey, it was also agreed that as soon as Maria Macdonald got able to go to the register of deed's office she would assign the chattel mortgage.

6

“(10) On January 27, 1882, the attachment in this action was levied upon said stock of goods, and the sheriff took the same out of the possession of the said A. F. Martin, assignee. Afterwards a rece ver was appointed by this court to take charge of said stock of goods, and on February 23, 1882, an order was made by this court for the sale of said stock by the receiver, and on March 25, 1882, he sold said stock of goods in pursuance of said order, for the sum of $3,870, of which sum there still remains on his hands fully $1,700.

"(11) On July 24, 1882, said Maria Macdonald executed the assignment of said chattel mortgage to said J. W. Bailey, a copy of which is indorsed upon the copy of said chattel mortgage attached to the interplea of said J. W. Bailey, she then going to the office of the register of deeds for that purpose.

"(12) No consideration ever passed from J. W. Bailey to said Maria Macdonald for the assignment of said note, nor for the assignment of said chattel mortgage; the only consideration therefor being that the proceeds of the same should be applied to the payment of the indebtedness of the defendant to the Weir Plow Company, and the promise of said J. W. Bailey that if the proceeds were more than enough to pay said indebtedness, then the residue be paid back to said Maria Macdonald."

And thereon the court made the following conclusions of law:

"(1) Under the circumstances, said chattel mortgage and said assignment for the benefit of creditors should be construed together as one transaction, and in so doing the chattel mortgage and the assignment defeat cach other, as being against the policy of the law.

"(2) Under the facts stated, said J. W. Bailey never obtained an equitable lien upon the funds in the hands of the receiver, and he is not entitled to any relief in this action.

"(3) The plaintiff is entitled to judgment against said J. W. Bailey for all costs made upon the interplea and the trial thereof in this case."