Knox v. Pearson

68 P. 613 | Kan. | 1902

The opinion of the court was delivered by

Smith, J.:

The answer filed by defendant below pleaded an account stated. A balance was struck and the amount due Knox agreed on between the parties. Such settlement was conclusive in the absence of fraud, mistake or error, and the burden to impeach it by clear and convincing testimony rested on the plaintiff below. (1 Cyc. 454.)

The reply of the defendant below confessed the settlement pleaded in the answer and sought to avoid its binding force by averring that it was not just and correct, and that it was accomplished by fraud and misrepresentation on the part of Knox. Such allegations are couched in the most general language. There is no attempt to specify the particular acts of fraud, or to point out wherein the books on which the settlement was founded were incorrect. The plaintiff below having in his reply pleaded in confession and avoidance, the burden of the proof was on him to sustain its averments. (Meeh v. Railway Co., 61 Kan. 630, 60 Pac. 319.)

The pleadings may be considered in their legal effect as if the allegations of the reply had been incorporated into the petition. If this had been done would such a petition have stated a cause of action ? We think not. To impeach a settlement solemnly made in writing, something must be alleged by way of attack on it more than mere epithetical statements and conclusions. If fraud is relied on, the nature of the fraud must be set forth, together with the circumstances under which it was practiced. If mistake or error be charged, the opposite party must be advised how the error entered into the settlement, its extent, and the particulars set forth with certainty. Here no details are given. The reply abounds with generalities. We are not informed how Pettit was misled into the settlement nor the nature of the deceit practiced on him.

The rule of pleading in such cases, which is borne out by all the authorities, is well stated in the Encyclopedia of Pleading and Practice, volume 14, page 42, as follows:

“A pleading which seeks the correction of a mistake, should allege such mistake distinctly and particularly. The reason for this rule is manifest. The equitable jurisdiction for the correction of mistakes is exercised only in order that the real intention of the parties may be carried out; and if the particulars wherein there has been a failure to express correctly the intention of the parties are not pointed out, the court will have nothing to guide it in making the correction. The fact that the expression ‘by mistake’ is interspersed through the pleading will not be sufficient to invoke the aid of equity, where the particular circumstances constituting the mistake are not alleged. See, also, Marmon v. Waller, 53 Mo. App. 610 ; Moody v. Thwing, 46 Minn. 511, 49 N. W. 229.

In The State ex rel. v. Williams, 39 Kan. 517, 18 Pac. 727, it was held that a general averment of fraud, without stating the facts on which the charge is based, presents no issue, and no proof is admissible thereunder. To this same effect see K. P. & W. Rld. Co. v. Quinn, 45 Kan. 477, 25 Pac. 1068.

We are clear that the petition and reply taken together did not contain facts sufficient to constitute a cause of action. The judgment of the court below will be reversed with directions to proceed further in accordance with this opinion.

Doster, C.J., Greene, Ellis, JJ., concurring.