The opinion of the court was delivered by
J. A. Cramer sued John F. Overfield and recovered a judgment based upon the plaintiff's claim that the defendant had sold him shares of stock in the U. S. Consolidated Oil, Shale & Refining Corporation, a new company, under the false representation that it had been merged with the Consolidated Gas, Oil & Manufacturing Company of Independence, Kan., an established concern. The defendant appeals.
1. Complaint is made of the overruling of a demurrer to the petition on the ground that several causes of action were improperly joined. The contention is that the petition, besides setting out a cause of action for damages on account of fraud, included statements and asked for relief pertinent to breabh of contract and rescission. Reliance is placed upon the opinion in Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619. There a petition was held to be subject to demurrer not because several causes of action were improperly joined but because two theories were presented as to the basis of recovery and on either theory some vital fact was omitted from the pleading. It was said in the syllabus, however, that a petition is insufficient if the court cannot determine from it upon which of several theories a recovery is sought. Since the adoption of the present code in 1909 procedural rulings are not ordinarily a ground of reversal unless they are affirmatively shown to have resulted in prejudice. (Civ. Code, § 581.) Here the case was tried out, being submitted to the jury on the theory of fraud alone, and there is no doubt of the judgment being based on that theory. It is not apparent that the allegations of the petition, if they were open to technical objection, hindered the presentation of the defense. (See, also, Wendel v. Implement Co., 112 Kan. 336, 210 Pac. 1100, and cases there cited.) Moreover, as the demurrer to the petition was passed upon April 15, 1922, and the appeal was taken March 13, 1923, the ruling is not reviewable. (Smith v. Griffith, 105 Kan. 357, 358, 184 Pac. 725.)
3. It is argued that there was no evidence of the plaintiff having relied upon the representation that a merger had been effected. He testified that .he gave credit to the representation, saying of the defendant: “Yes, I believed his statements; I had known him for a good many years, and I thought he was telling me the truth.” The representation concerning merger was obviously one likely to exert an influence on the sale, and from the evidence the jury could reasonably infer that the plaintiff relied upon it, although he did not say so in express terms.
4. The plaintiff recovered the amount he had paid for the stock.
5. Complaint is made of an instruction as omitting certain essential matters. These matters were all supplied in other parts of the charge, except that the jury were not told what fraudulent representations were material. No specific instruction having been asked on this point the defendant is hardly in a position to complain of its omission, but as the jury found specifically that the representation of merger, which we regard as material, had been made, no prejudice can have resulted. -
The judgment is affirmed.