272 P. 165 | Kan. | 1928
The opinion of the court was delivered by
Carl Millheisler appeals from a judgment setting aside and holding for naught an amended answer and cross petition filed by him against his codefendants C. C. Zimmerman and Thomas I. Sproul.
This action was commenced by the plaintiff to recover from C. C. Zimmerman and Thomas I. Sproul $507.13 insurance premiums collected by them as agents for the plaintiff and which premiums had not been remitted to the plaintiff. Afterward, on application of Zimmerman, Millheisler and Murphy were made additional parties to the action. Zimmerman then answered the petition of the plaintiff and filed a cross petition against Millheisler and Murphy. In that cross petition Zimmerman alleged that Millheisler and Murphy, under contract with Zimmerman and Sproul, had purchased from Zimmerman his interest in the insurance business and had agreed that Zimmerman should be thereafter under no liability for the firm debts or obligations, all of which were assumed by the new firm consisting of Thomas I. Sproul, Carl Millheisler and Andrew H. Murphy. Millheisler and Murphy then filed an answer and
Afterward, an amended answer and cross petition to the cross petition of Zimmerman was filed by Millheisler, in which he alleged that he and Murphy had purchased the interest of Zimmerman in the insurance business of Thomas I. Sproul and C. C. Zimmerman for which $6,000 had been paid and that fraud had been practiced on Millheisler and Murphy to bring about the purchase. The amended answer and cross petition did not allege a tender of what had been received by Millheisler or Murphy or both of them, but did affirmatively allege—
“That upon the discovery of the fraud complained of herein, which was less than two years before this amended cross petition was filed herein, [Millheisler] ratified said contract and thereby lost the right of rescission.”
The amended answer and cross petition asked for judgment against C. C. Zimmerman in favor of Carl Millheisler for the sum of $3,000. Zimmerman filed a motion asking that the court set aside, hold for naught, and not require him to answer the amended answer and cross petition of Millheisler for the reason that it attempted to set forth a different and inconsistent cause of action from that set out in his first answer and cross petition which asked
The question presented is not a new one. In Ireland v. Waymire, 107 Kan. 384, 386, 191 Pac. 304, this court declared that—
“It has been consistently held throughout a long line of decisions in this state, that where a party having the right to choose one of two inconsistent remedies, deliberately elects to follow one of them, with knowledge or the means of knowledge of the facts, he is effectually barred from thereafter making a new election and pursuing the other remedy. (Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111; Evans v. Rothschild, 54 Kan. 747, 39 Pac. 701; National Bank v. National Bank, 57 Kan. 115, 45 Pac. 79; Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27; Blaker v. Morse, 60 Kan. 24, 55 Pac. 274; Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062; Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665; Remington v. Hudson, 64 Kan. 43, 67 Pac. 636; James v. Parsons, 70 Kan. 156, 78 Pac. 438; Ullrich v. Bigger, 81 Kan. 756, 106 Pac. 1073.) The doctrine is an application of one phase of the law of estoppel which prevents one who comes into court asserting or defending his rights from taking and occupying inconsistent positions.”
To these authorities may be added Morse v. Grain & Ice Co., 116 Kan. 697, 701, 229 Pac. 366, and Pitt v. Keenan, 124 Kan. 810, 262 Pac. 567.
Under these authorities, the judgment of the district court must be and is affirmed.