98 P. 381 | Kan. | 1908
Lead Opinion
Complaint is made of instruction No. 6, the objection being that it permitted the jury to find for the plaintiff upon a state of facts contrary to the averments of his petition and in opposition to his proof. The petition avers that the note was executed by E. N. Burr, and that the property described in the mortgage was then owned by him. The copy of the note and mortgage attached to the petition indicate the facts to be as alleged. There is no suggestion that the partnership of E. N. Burr & Co. was in any way connected with or concerned in the transaction. While testifying as a witness the plaintiff appeared to be familiar with the firm of E. N. Burr & Co., and also with the business of E. N. Burr individually. He worked for E. N. Burr & Co. at Paola in 1905, and for E. N. Burr, individually, during January and February, 1906, at Topeka. They operated in different fields. Apparently the plaintiff was in a position to know the business of each and to plead and testify understandingly. The rule that a plaintiff must recover, if at all, upon the facts stated in his petition is well settled. (11 Cyc. 158; Brenner v. Bigelow, 8 Kan. 496; K. P. Rly. Co. v. Dunmyer, 19 Kan. 539; A. T. & S. F. Rly. Co. v. Irwin, 35 Kan. 286, 10 Pac. 820; St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543; 18 Pac. 720; Ins. Co. v. Thorpe, 40 Kan. 255, 19 Pac. 631; Newby v. Myers, 44 Kan. 477, 24 Pac. 971; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; C. K. & W. Rly. Co. v. Bell, 1 Kan. App. 71, 41 Pac. 209.)
To avoid inconvenience from the enforcement of this rule ample opportunity is afforded under the statute to amend the petition at any time before judgment. If the plaintiff was deceived by E. N. Burr, and thereby induced to accept a mortgage on partnership property, which fact was not discovered until after the commencement of this trial, he should have obtained leave
Other questions are discussed, but as this decides the case none of them needs- to be considered. The judgment is reversed, with direction to proceed in accordance with the views herein expressed.
Dissenting Opinion
(dissenting) : Although the fact that the mortgage debt was the debt of E. N. Burr & Co., due for services rendered to that partnership, and that the mortgage was given in behalf of the partnership, was not set out in the petition it was a litigated issue. E. N. Burr appears to have been the only one of the partnership who was in Kansas — the one who was in control of the partnership business here, and he was the one who gave the security. Testimony was given in the case, without objection, that Johnson was working for the partnership of E. N. Burr & Co., that his 'claim for services was a bona fide one, and that the mortgage was given on partnership property to pay a ■partnership debt. The question whether it was a partnership debt and security was presented to the jury in the testimony; and the jury specially found that the work was done for the partnership while E. N. Burr was in control of its business, and that the note and mortgage were executed to evidence a valid indebted'ness owing to Johnson for services performed in and about the partnership business and with the intention -of pledging the property mortgaged to secure that indebtedness. Since the matter was in evidence and in litigation, it was not improper to instruct the jury with reference to it. Instructions, of course, should
Rehearing
OPINION ON REHEARING.
A rehearing was granted in this case,' and it has been reargued. The same briefs originally used were refiled, and the oral presentation was substantially the same as before. The case was thoroughly considered when the former decision was made from every point of view then suggested, either in the printed briefs or oral argument.
Nothing new has been submitted, and we are therefore compelled to adhere to the conclusion heretofore announced.