11 Kan. 445 | Kan. | 1873
The opinion of the court was delivered by
John F. Carter brought his action against a school district on an account for rent due and owing from the district to one William Collins. Carter alleges in his petition that Collins assigned said account to him by means of a certain written instrument, a copy of which written instrument he sets out in full as an exhibit'-to his petition. The school district answers by a general denial, without verification. On the trial the plaintiff Carter offered said written assignment in evidence, to which the defendant (the school district) objected for the reason that it was incompetent, without proof of its execution, which objection was overruled by the court, and the defendant duly excepted. The first and main question to be considered by the court is, whether the assignment by Collins of his claim for the rent in question is such a “written instrument” as is mentioned in §108 of the civil code, and therefore whether the allegation of the execution of said assignment “shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney:” We know of no reason- why said section does not include this written instrument as well as others. Its terms are broad enough, and we suppose it means just what it says. A section intended to prevent parties from pleading a falsehood should not be so construed as to. invite such pleading. If the allegation of the execution of the instrument in any given case is true, the other should not deny it. If it is not true, then the other party should so affirm under oath. But if it is believed to be untrue only, then the other party may verify his pleading on belief merely. (Code, §111.) Other errors were assigned in the petition in error, but as they have not since been referred to in the bi’ief of counsel or otherwise we suppose they have been abandoned, and we shall therefore take no notice of them. (Wilson v.