1 Kan. App. 14 | Kan. Ct. App. | 1895
The opinion of the court was delivered by
: This was an action brought by the defendant in error (plaintiff below) to recover
The pleadings in this case consist of the petition, answer, and reply. Upon the trial of the cause, Ma
“That at the time the said promissory note, attached to said plaintiff’s petition, became due and payable, it was not presented for payment on the day it was due, nor protested for nonpayment, and said defendants were thereby released from further liability.”
Nor does the reply in any way aid the petition, it being as follows :
“ Comes now the plaintiff, Americus V. Jewett, and for reply to the answer of Malott & Co., filed herein, says that he denies each and every allegation contained in said answer, which is contradictory to, or inconsistent with, his petition filed herein.”
Now, this does not deny the allegation of the answer that the note was not protested. It merely denies such allegations as are contradictory to, or inconsistent with, the petition. The allegation of nonprotest in the answer is not contradictory to, nor inconsistent with, the allegations of the petition.
We think the objection of the defendants, Malott & Co., to the introduction of testimony should have been sustained; in other words, that the petition filed in this cause does not state facts sufficient to constitute
The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.