3 Kan. App. 478 | Kan. Ct. App. | 1896
The .opinion of the court was delivered by
This action was commenced in the district court of Cowley county, Kansas, by the plaintiff to recover $300 which it alleges was owing to it from the defendant, being a part of the purchase-price of a thrashing engine sold by it to the defendant. It appears from the evidence, that Clark and Andrews purchased the engine from the Frick Company, and
In the original petition filed in this case, the plaintiff, in addition to the allegation of indebtedness and the nonpayment thereof, set up the former suit and a claim that the question of the sale and delivery of the engine had been adjudicated between these parties, and that the same had become res judicata. The court sustained a motion to strike out all that portion of the petition as being redundant, irrelevant, and surplusage, and prejudicial to the rights of the defendant. The plaintiff thereupon filed an amended petition, alleging the sale and delivery and the failure to pay $300 of the purchase price. The defendant answered, denying generally and specially all the allegations of the petition. The defendant also filed an amended answer, but the most of it was stricken out, upon motion, and he obtained leave to withdraw the remainder of it. Judgment was rendered against the defendant on default, but, upon a sufficient showing, it was opened
All the errors complained of in this case relate to the one question of res judicata, and the only thing for us to determine is the rights of the parties in relation thereto. The defendant’s attorney argues at considerable length in ’his brief the question of whether there was a sale and purchase of the engine. That question ivas submitted to the jury and they decided that there was not. The court approved their finding, and as there was evidence tending to establish that finding, and the court committed no error in instructing the jury upon this point, there is nothing for us to review thereon. The only question for us to determine is as to whether the defendant is es-topped from denying the sale, and, if so, Did the plaintiff pursue the right course to obtain a ruling in its favor upon the question? The court committed no error in striking out that portion of the petition which pertained to the former trial, or in refusing permission to refile the same, for the reason that the plaintiff had no right to anticipate the defense of the defendant and allege in the petition things which would be proper t.o plead in the reply, if warranted by the answer.
The petition must contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. (Gen. Stat. 1889, ¶"4170.) If the answer had set up a defense which had been adjudicated, it should have been traversed by the reply. This is the proper rule and
There was no evidence in this case which would, warrant the court in giving instructions to the jury
The court, in its instruction to the jury upon the question of a former adjudication, probably assumed that there was more evidence in the record upon that point than the record warrants, and upon the assumed condition of the record its instruction is not strictly the law upon the question of res judicata, but the rights of the plaintiff in error are not prejudiced thereby. ■
The judgment of the district court is affirmed.