114 Kan. 120 | Kan. | 1923
The opinion of the court was delivered by
The plaintiff sued on an account to recover $782.57, the purchase price of automobile accessories sold to the defendant. The answer denied all the allegations of the petition,
1. The plaintiff contends that “the court erred in overruling the demurrer to the cross-petition.” Two reasons are urged by the plaintiff for this contention. One is that “before his crossrpetition could state a cause of action for damages, he must have affirmed the con-' tract. He cannot, in the same pleading, both affirm and rescind and sue for damages:” The other is that if the cross-petition stood alone as one pleading, it would be subject to a demurrer, and there is not sufficient allegation to show loss of profits. There was no motion to make the cross-petition more definite and certain, nor was the attention of the court in any other way called to the manner of pleading the damages. At this time, it must be held that the cross-petition stated a cause of action.
2. Another matter urged is that “the court erred in overruling the motion to require the defendant to elect on which he expected to stand, his answer or his cross-petition.” The plaintiff says the defendant “cannot plead settlement which would naturally close the contract, and also plead rescission, and at the same time sue for damages.” One difficulty with the plaintiff’s argument is that the
3. Another contention is that “the court erred in overruling the demurrer to the evidence in support of'defendant’s answer.” Underlying this contention is the argument that the answer and cross-petition were inconsistent with each other and that the defendant could not prevail under both. The answer was in response to the plaintiff’s cause of action. The cross-petition set up the damages which the defendant claimed to have sustained because of the facts alleged in the answer. The defendant could plead those facts in defense to the plaintiff’s cause of action and plead them as his cause of action against the plaintiff.
4. Plaintiff argues that the court “erred in overruling the demurrer to the evidence in support of defendant’s cross-petition.” This argument is based on the contention that there was no evidence to show loss of profits. In State v. Durkin, 65 Kan. 101, 68 Pac. 1091, this court said:
“Before one may recover damages for loss of profits to an established general business, occasioned by the wrongful acts of another, it must be,made to appear that the business had been in successful operation for such period of time as to. give it permanency and recognition, and that it was earning a profit which may reasonably be ascertained or approximated.” (Syl.)
See, also, Artwein v. Link, 108 Kan. 393, 395, 195 Pac. 877, and cases there cited. There was no evidence to show loss of profits or damage to the business being conducted by the defendant. The demurrer to the evidence on the cross-petition should have been sustained.
5. Complaint is made of certain instructions given by the court. Part of the argument of the plaintiff is based on the contention that there cannot be a rescission of a contract in an action for damages arising out of the nonfulfillment of the guaranty. That contention has been disposed of by what has been said concerning rescission. The contract was .not rescinded. The remainder of the argument concerning the instructions is based on the fact that the court did not instruct the jury that the defendant’s measure of damages was
6. The defendant, in his brief, says—
“I presume if the answer stood alone, without the cross-petition, that plaintiff would have been entitled to a judgment of at least $64.97, as there is nothing in the pleadings or the proof made thereunder to offset that amount.”
With no evidence to sustain the cross-petition and this admission ;on the part of the defendant, judgment should be rendered for the plaintiff for $64.97.
The judgment is reversed, and judgment is rendered in favor of the plaintiff for $64.97.