20 Kan. 235 | Kan. | 1878
The opinion of the court was delivered by
Clay Center, Clay Co., Kas., Sept. 18, 1876.
A. Fanson, Dr. To Chas. E. Linsley:
For work and labor performed, repairing and running a steam threshing machine, from Aug. 20th 1876 to Sept. 10th 1876, 18 days’ work, at $2 per day, . . $36.00
Cr., cash,.........$5.00
Balance due,........31.00
The defendant’s amended bill of particulars, after the title, reads as follows:
I. The defendant for a first defense to the plaintiff’s bill of particulars herein, says, that he denies each and every allegation therein contained.
II. The defendant further answering says, that the cause of action of the plaintiff herein arises upon a contract for the employment of the plaintiff by the defendant as an engineer of a steam threshing-machine owned by the defendant, and that after the machine had been run for the period of eleven days during the threshing season of. 1876, by the plaintiff as its engineer, the defendant discovering a defect in the machinery of said machine determined to abandon its use, and in pursuance of such determination the defendant laid up and housed said machine; and that afterward, while said machine was laid up and housed, he [the plaintiff] took possession of said machine and ran the same for the period of three days, and that the use of said machine was worth the sum of fifteen dollars per day, amounting to the sum of forty-five dollars, for which the defendant asks judgment of the plaintiff.
III. The defendant further answering says, that the cause of action herein set forth by the plaintiff arises upon a con
The defendant asks judgment against the plaintiff for the sum of seventy-two dollars.
The plaintiff demurred to said second and third paragraphs, on the ground that they did not state facts sufficient to constitute any defense to the plaintiff’s cause of action, or to entitle the defendant to any relief. The demurrer was to each paragraph separately. The defendant asked the court to sustain the demurrer as to the plaintiff’s bill of particulars, but the court refused, and sustained the same as to both of said second and third paragraphs. Judgment was i’endered in favor of the plaintiff and against the defendant.
Counsel have entered into the following agreement in this case, to-wit:
“It is agreed by counsel, that all informalities and irregularities appearing herein are waived, and that the only questions herein are — First, Did the court err in refusing to carry the plaintiff’s demurrer back to and to sustain the same to the plaintiff’s bill of particulars? and second, did the court err in sustaining the plaintiff’s demurrer to the second and third paragraphs of the defendant’s bill of particulars?”
The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion.