283 P. 628 | Kan. | 1930
The opinion of the court was delivered by
This was an action to recover damages for the breach of a contract entered into by the plaintiff with the Southwestern Gas Company and the Manufacturers Fuel Supply Company. After issues had been joined and the trial was begun, counsel for plaintiff made his opening statement and upon that and averments of the petition the court held that the plaintiff had not set forth a cause of action and sustained the motion of defendants for judgment in their favor on the first count of the petition. From that ruling plaintiff appeals.
It was stipulated in the contract that the gas to be delivered and •purchased should be dry and merchantable gas free from water and oil. Other provisions were contained in the contract as to meters to be provided; the plan of measuring the gas sold, the times of payment and that certain failure of compliance with its terms would be grounds for cancellation. While defendants alleged that the gas from the lease was wet and unmerchantable, there is no controversy between the parties as to the execution of the contract, nor do defendants deny that they had breached it, but they insist that the contract was an executory one, that the title to gas for which plaintiff sought recovery was not in the plaintiff as -it had not been segregated from the mass of' gas in the well nor produced and in a condition for delivery. That there must, be measurement and delivery before passage of title to the gas, and that-the .passage of title is essential to the maintenance of an action-to recover the pur
Granting that the real measure of damages for the breach of the. contract was not that asked by plaintiff* the nature of the action is not necessarily to be determined by the prayer of the petition. It has been decided that—
“The demand of the plaintiff in his petition does not necessarily limit the court in the judgment which it may render. It is the case made by the pleadings and the facts proved and not the prayer of the pleader which measure the relief that the court may award.” (Hardy v. La Dow, 72 Kan. 174, syl. ¶ 1, 83 Pac. 401.)
In another case it was said:
“So long as a petition states a good cause of action the prayer for relief is not very important. The prayer merely voices the plaintiff’s idea of what Telief he is legally entitled to, or what redress will satisfy him. The court will grant him the relief to which his cause of action alleged and proved shows him to be entitled, and this relief may or may not conform in whole or in part to that prayed for by the plaintiff.” (Eagan v. Murray, 102 Kan. 193, 170 Pac. 389.)
In the later case of Wellington v. Insurance Co., 112 Kan. 687, 212 Pac. 892, it was held that:
“The nature of an action is determined by the allegations of the petition rather than by the prayer for relief.”
The petition was certainly good as against a demurrer or motion for judgment. It set forth the making of a contract, one which it is
“This decision renders the matter of procedure unimportant, but to make clearer what was said in the original opinion on that subject it may be added that the court did not mean to indicate that by reason of the form in which it was brought the action was not maintainable, but merely that if the plaintiffs had been entitled to recover at all, the measure of their damages would have been the amount of actual loss they could prove, which would not necessarily be the full contract price of the gas.” (Ely v. Gas Co., 100 Kan. 441, 442, 165 Pac. 284.)
We conclude that a cause of action was stated in the petition and opening statement of counsel, and therefore the judgment will be reversed and the cause remanded for further proceedings.