58 P. 124 | Kan. Ct. App. | 1899
The opinion of the court was delivered by
We are of the opinion that the court abused its discretion in not granting the plaintiff time
The court instructed the jury that the plaintiff could not recover unless it proved that the taking was wrongful and without the knowledge and consent of the plaintiff, and refused to instruct the jury that if they believed the defendant had taken the plaintiff’s lumber and converted it to his own use the plaintiff might recover the market value thereof, whether defendant took it with or without the consent of the plaintiff. The word ‘‘wrongful ’ ’ was not ah essential allegation of the plaintiff’s case and ought to have been treated as surplusage. The real gist of the action was the recovery of the value of the property of the plaintiff had, retained and used by the defendant. If was not claimed that the defendant had ever paid for it. He admitted that he had not. There was sufficient evidence, uncontradicted, to sustain a verdict and judgment for the plaintiff, and the evidence did not sustain the verdict and judgment for the defendant. The court should have sustained the motion for a new trial.