Avery Manufacturing Co. v. Lambertson

86 P. 456 | Kan. | 1906

The opinion of the court was delivered by

Smith, J.:

The first assignment of error is the ruling of the court upon the motion of the plaintiff that the answer be made more definite and certain in five different parts thereof, which were specified. The court allowed the motion as to three of the specifications and denied it as to two. Both the plaintiff and the defendant excepted to the ruling, and the defendant was granted leave to file and did afterward file an amended answer. The exception is too general to raise any question for review. A single exception to a series of rulings is unavailable if any one of them is correct. (8 Encyc. Pl. & Pr. 167; Sumner v. Blair, 9 Kan. 521; Bailey v. Dodge, 28 Kan. 72.) The plaintiff, by implication, admits the correctness of the ruling on three of the five specifications. Besides, the filing of an amended answer, to which no objection is urged in plaintiff’s brief, presumably cured any defect that may have existed in the original answer. Again, the matters claimed to have been defectively pleaded appear from the record to have been fully tried out, and, if any error was made in the ruling, the plaintiff was not prejudiced thereby.

Further, it is urged that the court erred in its second conclusion of law, which reads:

“That the agreement to indorse subsequent payments upon this $425 note, embraced in the correspondence between the plaintiff and the defendant, was based' upon a sufficient consideration, as the settlement of a doubtful and disputed claim, and was a valid contract between the parties.”

The objections to this conclusion of law are: (1) That the defendant did not plead the compromise as a defense; (2) that there was no consideration for the agreement to indorse future payments on this particular note. It is technically true that the defendant did not plead the compromise of the claim that the $400 paid by Cunningham had not been applied on the surety note, as Cunningham directed. Evidence was offered, however, of this fact without any objection on the part of the plaintiff, and witnesses were cross-examined by plaintiff’s attorney in relation thereto. The parties to an action may enlarge the issues by mutually trying out issues of fact not involved in the pleadings.

The contract, however, was pleaded, and was alleged and proved to be a written contract. A written contract imports a consideration. (Gen. Stat. 1901, § 1196.)

It was unnecessary to allege a consideration or to prove in what it consisted, at least until the issue of no consideration had been raised by the reply, which in this case did not raise this issue. (4 Encyc. PI. & Pr. 946.)

The finding of fact, which is embraced in this conclusion of law, as to what constituted the consideration, while justified by the evidence, is wholly immaterial, and no error can be predicated thereon.

The judgment of the district court is affirmed.

All the Justices.concurring.