5 Kan. 355 | Kan. | 1870
By the Court,
This was an action brought in the district court of Marshall county, by David Butler and James W. Hollinshead, partners, etc., against A. G. Barrett, to recover damages for an alleged breach by and on the part of the said Barrett, of a contract which had before that time been entered into between the parties. The record purports to set out the said contract and agreement, which was in the words and figures following, to-wit, “ Exhibit A.”
[Bevenue stamp.]
“July 30, 1866, sold to Butler & Hollinshead, sixty-seven, three, four and five year old steers, at forty dollars per head, to be delivered about the 15th day of August', 1866, and to furnish two hands to help drive to Pawnee city. (Signed.) A. G. Barrett.”
“July 30, 1866. Deceived on the above, $100.
(Signed) A. G. Barrett.”
The pleadings in this case consisted of the petition of plaintiffs, which contained three counts; the answer of the defendant and the reply of the plaintiffs. But previous to the offering of any testimony a motion was made by the defendant asking the court to exclude all testi
Thereupon the defendant moved the court to set aside the verdict and arrest the judgment on the following grounds, to-wit:
1. The petition does not state facts sufficient to constitute a cause of action against the-defendant.
2. The pleadings in this cause failed to show that the defendant is entitled to a judgment in his favor in this cause, which said motion was overruled, and to this ruling the defendant excepted. This was the only exception in the records, - and consequently here may be found the basis of the only questions arising legitimately in the case.
It is contended for the plaintiff in error 'that the petition is defective because no sufficient demand is shown to have been made upon the defendant for the delivery of the property mentioned in the contract. The allegation of the petition is to the effect that a demand thereof was made on the 14th day of August instead of on the 15th, which, as appears by the record was the date fixed for the delivery in the written agreement. But this statement is denied in the answer, where it is set up that the delivery was to have been made on the 13th day of August, and that the defendant was ready to make such delivery on that day. The plaintiffs replying reiterated the statements of the petition, and denied that they were to receive the cattle at any other time than that mentioned in the contract of sale. They also averred that they demanded a compliance with said contract on the
It is further objected that the petition contained no sufficient averment of performance, or offers to perform on the part of the plaintiffs. The statement is, that they “ offered to pay said defendant the balance due for said steers on said written contract of sale.” But it is said that their offer was made on the 14th day of August. That may he true, but this does not preclude the idea that it was also repeated on the 15th, as stated in the reply; and, besides, inasmuch as the written contract, which is set out in the record, fixes the time for the delivery of the cattle to he “ about the 15th of August,” is it not fair to hold that the offer “ to pay the balance due for said steers on said written contract,” even though it was made on the 14th, was a continuing offer to pay as
It is there averred that the plaintiffs “ did demand said steers on the 14th day of August, 1866, and offered to pay said defendant the balance due on said contract of sale; and, further, that they held themselves in readiness at all times to comply with their said contract.”
This language is comprehensive and not easy to be misunderstood; and it seems to us that, under such averments, the plaintiffs might have been and were properly allowed to introduce testimony to prove their offer to pay, and any circumstances connected with such offer, as would make it good under the law, and especially, since no objection was taken to the former substance of the allegation. It may be objected that a defective petition could not, in any manner, be affected by the allegations in a reply. This may be true, provided the objection be taken in time. But we think that such an objection comes too late, if made for the first time after verdict; and, hence, we say that, in a case like the one at bar, where all the several pleadings have been duly filed, and put before the court and jury as upon trial, without objection in any manner, and testimony introduced under them also without objection, and the cause submitted and a verdict rendered therein, a reviewing court will consider all of the pleadings on each side of the case, in determining whether or no a good cause of action or defense has been stated, as the case may be. The judgment of the district court is affirmed.