60 Kan. 30 | Kan. | 1898
This was an action by the Kansas Grain Company, as plaintiff, against the First National Bank of Hutchinson, Kansas, as defendant, to recover the amount of a deposit of money made by the plaintiff in the defendant bank, which the latter had refused to pay to plaintiff in person, and also to recover damages on account of loss of business character and standing caused by the refusal to honor plaintiff’s checks issued to other persons. The claim for the recovery of the amount of the deposit was, of course, upon the implied contract to pay upon demand. The claim for damages was in the form of two additional causes of action, in each of which the issuance of checks to third persons, their presentation to the defendant and its l'efusal to pay were stated. These refusals were alleged to have been wilful and malicious, and made with the intent to injure the plaintiff’s business character and standing, and to have resulted in such consequence. The case was tried to the court without a jury. Special findings of fact were made. Judgment upon these findings was rendered for plaintiff for $4063.75 upon the cause of action for the recovery of the deposit, and $1 of actual and $100 of exemplary damages upon each of the two other causes of action. From this judgment the defendant below prosecutes error to this court.
One of the claims of error is that the findings and judgment are unsupported by the evidence. Other-claims of error are the admission and rejection of evidence upon the trial. None of these claims can be inquired into by us because of defects in the preparation of the case-made. This document does not purport to contain all the evidence and other pro
Counsel for plaintiff in error strenuously insist that there was a misjoinder of causes of action; that a, cause of action on contract and one or more in tort cannot be joined unless they arise out of the same transaction, or transactions connected with the same subject of action (Gen. Stat. 1889, ¶ 4166; Gen. Stat. 1897, ch. 95, § 83); that the several causes of action in question did not so arise, and therefore that their demurrer for misjoinder should have been sustained. Under the special circumstances of this case, as disclosed by the findings of the court, it is unnecessary to pass
Had no judgment at all been rendered upon these tAVO causes of action, it is clear that the error in overruling the demurrer, if, indeed, it was an error, Avould have been cured, or rather would have been rendered harmless. “Although a demurrer may have been improperly overruled, yet, if the demurrant was not harmed by such ruling, judgment will not be reversed on account of the harmless error.” (6 Encycl.
The judgment of the court below is ordered to be modified to the extent of the $200 of exemplary damages. In all other respects it is affirmed. The costs of this court are ordered to be equally divided.