No. 18,858 | Kan. | Jun 6, 1914
The rule is well established that when no demurrer has been filed to. a pleading, and it is attacked for the first time by an objection to the introduction of evidence, it must be liberally construed, and any cause of action fairly indicated may be proved although neither fully nor formally expressed. Applying this rule, the answer fairly presented the claim that the consideration for the dissolution settlement by the parties was apportioned, $500 in cash being given for the physical assets, and the note for $500 being given for the plaintiff’s agreement not to engage in business. Consistently with this theory, counsel for the defendant, in his opening statement, said that the whole consideration for the note sued on was the plaintiff’s agreement not to engage in business. The plaintiff should have been allowed to offer evidence to support this theory.
The judgment of the district court is reversed and the cause is remanded with direction to proceed as indicated.