Bershears v. Nelson Distilling Co.

101 P. 1011, 80 Kan. 194, 1909 Kan. LEXIS 45

• Court: Supreme Court of Kansas
• Decided: May 8, 1909
• Docket: No. 16,028
• Status: Published

Opinion

The opinion of the court was delivered by

Burch, J.r

The plaintiff sued for the price of 241.71 gallons of whisky sold and delivered on account to the defendant in the state of Missouri. The defendant answered that the whisky was not sold for medicinal, mechanical or scientific purposes. There was no reply. Judgment was rendered on the pleadings for the plaintiff, and the defendant prosecutes error.

On the face of the petition the sale was presumptively for a lawful purpose, and it devolved upon the defendant to show illegality. To do this he pleaded certain facts. The legal force and effect of those facts as a defense were to be determined by the law applicable to them. Under the law of this state the answer was conclusive against recovery. The courts of this state do not judicially know the law of Missouri. If any law exists in that state which would purge the sale of the illegality disclosed by the answer it should have been pleaded in a reply. No reply of this kind having been filed, the court had no law by which to estimate the facts of the answer except the law of Kansas. True, the contract was a Missouri contract, but since it did not appear that the Missouri .law is different from our own the court was bound to presume it to be the same as'our own. (Bank v. Nordstrom, 70 Kan. 485; Poll v. Hicks, 67 Kan. 191; Woolacott v. Case, 63 Kan. 35; Railroad Co. v. Johnson, 61 Kan. 417; Rogers v. Coates, 38 Kan. 232; K. P. Rly. Co. v. Cutter, 16 Kan. 568; Furrow v. Chapin, 13 Kan. 107.)

The defendant further pleaded that the plaintiff is a corporation of the state of Missouri, is a non-resident of this state, that its cause of action accrued if at all under the laws of Missouri, and hence that it has no authority to sue in this state because no resident of this state would be entitled to any part of the judgment. This defense is based on the provisions of chapter 325 of the Laws of 1905, which reads as follows:

“Whenever a cause of. action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be sued upon in any of the courts of this state, by the person or persons who are authorized to bring and maintain an action thereon in the state or territory where the samé arose, provided one or more of the parties entitled to the proceeds of said action are at the time of beginning said action residents, of the state of Kansas.” (§1.)

The defendant misconstrues the purpose of this act.. It was intended to enlarge, and not to restrict, the right to bring actions in this state. For example, causes of action created by several of the states and territories; of the United States ’for damages consequent upon death occasioned by wrongful act were not enforceable at all in this state. (Matheson v. Railroad Co., 61 Kan. 667.) Now, by virtue of the statute, any such causes of action may be sued upon here, provided a resident of this state is entitled to participate in the distribution of the proceeds of the litigation. The right to prosecute claims properly suable here before the statute - was enacted is not affected.

A technical defect in the verification of the plaintiff’s account appears.

The judgment of the district court is reversed, and the cause is remanded.