74 P. 622 | Kan. | 1903
The opinion of the court was delivered by
Sarah McD. Potter sued George Leis on a non-negotiable promissory note made by him to James Tracy Potter. The petition alleged an assignment of the note to plaintiff, made February 1, 1899. Defendant filed a verified answer containing a general •denial admitting the execution of the note, but alleging that it had been sold and assigned by the payee to one William B. Arnold, that there had been no reassignment to the payee, and that Arnold was the owner and holder of it. Affirmative matter was also set up, which will be noticed later. Plaintiff replied denying the new matter of the answer, and alleging that the note had been assigned in writing to Arnold about January 1, 1898, and that about February 20, 1899, Arnold had assigned it in writing back to the payee, who assigned it to plaintiff.
The case coming on for trial, plaintiff introduced, besides other evidence, the deposition of James T.
In support of the ruling of the trial court, defendant in error claims that under the decision in Kimble v. Bunny, 61 Kan. 665, 60 Pac. 746, the form employed in the verification of the answer was such as to render ineffective the denial of the assignment of the note by payee to plaintiff. Assuming, but not deciding, that this is true, the fact cannot avail plaintiff. The answer affirmatively stated that prior to the date of such assignment the note had been sold and assigned to Arnold, and that Arnold had never reassigned it, and was still the owner. It is not disputed that these allegations were effectively verified. The reply admitted the assignment to Arnold, but
But plaintiff further urges that the error, if any, in denying defendant this opportunity was not material because the only issue was as to the ownership of the note by Arnold, and since Arnold in his deposition disclaimed. all interest in it defendant is fully protected against any possible claim- on his part. For practical purposes this is doubtless true, yet it cannot be said as a matter of law that no injury could result to defendant. The deposition of Arnold, even though it is signed by him and filed in the case, does not have the effect of a pleading. Such estoppel as it might work against him would not have the absolutely conclusive effect of a judgment in a case to which he was a party.
These considerations compel a reversal of the case, out it is pertinent to determine whether the answer stated any affirmative defense. Its allegations of new ' matter were intermingled and stated in one count, but logically group themselves into three purported'. grounds of defense, pleaded by way of set-off, the substantial averments of each being as follows : (1) That James Tracy Potter had agreed to buy of defendant a half-interest in certain real estate, and paid a portion of the purchase-price, but had refused to carry out the
The allegations of the first of these defenses were not sufficient to support the introduction of evidence, on account' of the statute of frauds. A contract for the purchase of land is within the statute. (Shultz v. Pinson, 63 Kan. 38, 64 Pac. 963.) No exceptional circumstances were alleged to take it out of the statute. The fact that defendant had received a part of the purchase-price did not enable him to avoid its effect. ( Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164.) Since the contract is one that cannot be enforced, no action for damages will lie for its breach. (8 A. & E. Encycl. of L., lsted., 658 ; Fry v. Platt, 32 Kan. 62, 3 Pac. 781, and cases cited ; 23 Cent. Dig. 2333-2335.)
The only damages claimed under the second defense seem to be such as might be occasioned by loss of profits of the business of the corporation, and are too remote. Nor does it appear that there was a consideration for the promise to furnish money to the corporation. The allegations of the third defense, which-we have quoted in full, are likewise insufficient. It is not alleged that defendant’s time was spent in the
The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.