Delphos Milling Co. v. Jackson, No. 23,764

No. 23,764 | Kan. | Jun 10, 1922

The opinion of the court was delivered by

Porter, J.;

The Delphos Milling Company sued the defendant upon an account. The petition alleged that the defendant purchased merchandise from the plaintiff at different times and in different amounts and at the prices set forth in exhibit A, attached to the' petition, which was a verified, itemized statement of the account between plaintiff and defendant, and that after giving the defendant credit for all payments, set-offs and 'counterclaims to which he was entitled there was due and owing on the account a certain sum with interest at six per cent, as shown on exhibit A. The exhibit consisted of an itemized statement of the account with numerous items, credits, and charges, and was verified by the president of the plaintiff company, who stated that he had read the petition and examined the statement of account, “and knows the petition and statement of account and all statements and items therein are just, true and correct and there remains due plaintiffs from the defendants the sum of $1,436.42.”

The answer was a general denial with a plea of payment, to which the plaintiff filed a reply consisting of a general denial.

On the trial, after counsel for the parties had made their opening statements, counsel for the plaintiff suggested that the burden was on the defendant. The court, however, held that although the answer was not verified, the burden was on the plaintiff for the reason that the petition failed to allege the corporate existence of plaintiff, and for that reason defendant could not admit it, and held that the burden of proof was on the plaintiff. Plaintiff then introduced evidence to show that it is a corporation, and rested. The defendant demurred to the evidence on the ground that it failed to 'prove any cause of action. Plaintiff’s counsel asked opposing counsel to point out under the pleadings wherein the evidence had failed, whereupon defendant’s counsel said, “because there is no allegation contained in the petition as to the correctness of this account.” The court overruled the demurrer and also a motion to direct a verdict for the defendant, and upon the defendant electing to stand upon the demurrer and motion, the court rendered judgment as prayed for in the petition. The .defendant appeals and insists that the court erred in these rulings and in overruling the motion for a new trial.

In the briefs of the defendant it is said that two material questions are presented: First, did not plaintiff, by filing a reply and proceeding to trial without questioning the sufficiency of the answer waive verification of the answer? Upon this proposition defendant cites Emery v. Bennett, 97 Kan. 490" court="Kan." date_filed="1916-03-11" href="https://app.midpage.ai/document/emery-v-bennett-7903022?utm_source=webapp" opinion_id="7903022">97 Kan. 490, 155 Pac. 1075, and Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952. In the first case cited it was held that although section 110 of the civil code requires that the answer to a petition in an action founded upon a written instrument for the unconditional payment of money should be verified, the verification is waived when the plaintiff joins issue on the answer, introduces evidence contradicting such defense and aslcs instructions covering his theory of the law pertaining thereto. In the case at bar plaintiff did not proceed to trial without questioning the sufficiency of the answer. It insisted that the burden was on the defendant because the answer was unverified. The court erroneously, we think, held that it was necessary for plaintiff to offer proof that it was a corporation. Plaintiff acquiesced in the ruling and offered evidence upon that issue alone. We think it was of no importance whether plaintiff was a corporation or not. From the opening statements of counsel it appears that the defendant dealt with plaintiff as the Delphos Milling Company, a corporation, and could not be heard to say or urge as a defense that plaintiff was not a corporation.

In the second case cited it is held that if plaintiff reply to the unverified answer and go to trial on the issues of fact and introduces his evidence thereon, he cannot complain that the court tried out and determined the question of the alleged partnership on the evidence presented. Here, however, plaintiff’s reply was a • general denial, which went, not to any part of the answer requiring verification, but to that part pleading payment.

The code does not provide for the filing of a reply except where new matter is alleged. The only traversible thing in the answer was the plea of payment. In other words, the answer admitted the correctness of the account, but alleged payment. The reply traversed the plea of payment. On the trial plaintiff offered no evidence in support of the reply, and insisted that the burden on that issue was upon the defendant, which was true. On one immaterial matter the court held the burden to be on the plaintiff. But plaintiff confined its evidence to that issue alone. It would be carrying technical rules of pleading to the extreme to say that by filing a general denial plaintiff was estopped to insist upon the failure to verify the answer denying the correctness of the account. Plaintiff merely offered evidence to show that it was a corporation, which the court required it to do. It did not go to trial on the issue of the correctness of the account, and therefore the rule stated in the cases cited has no application.

The second point relied upon by defendant is that plaintiff was not relieved from proving .the correctness of the account, because it is insisted that the petition contained no allegation of the correctness of the account. The language of the petition is not aptly chosen. But our code provides that—

“In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” (Civ. Code, § 117.)

It does not require a very liberal construction of this petition to hold that it alleges the correctness of the account. The petition states 'that the plaintiff purchased the merchandise at the times, dates and in the amounts and prices set forth and alleged in plaintiff’s exhibit A, which is the verified itemized statement of the account. It then states the amount due plaintiff on the account, attached to the petition; and the affidavit of the president states, under oath, that he has read the petition and the statement of the account, and that all statements and items therein are just, true and correct. The defendant selected the ground upon which he saw fit to place his demurrer, which was, that, there was no allegation in the petition as to the correctness of the account.

Judgment affirmed.