2 Kan. App. 782 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
The judgment complained of in this case was rendered by the district court of Wyandotte county in an action brought by the defendants in error (plaintiffs below) against the plaintiff in error (defendant below) to recover for attorney’s fees alleged to be due and owing for professional legal services performed by the plaintiffs at the special instance and request of the defendant. The answer was a general denial.
It is the first claimed that there was a misjoinder of parties plaintiff. This objection was made for the first time upon the trial. The evidence shows that Karnes and Krauthoff are the only persons interested in the money alleged to be due from the defendant. Holmes was not a member of the firm when the services were performed, and apparently has no concern in the result of the action. Any objection on this ground, however, was waived by the failure to make it at the proper time. A misjoinder or defect of parties plaintiff is waived unless it is taken advantage of by answer or demurrer. (Comm’rs of Lyon Co. v. Coman, 43 Kan. 676; Hurd v. Simpson, 47 id. 245.)
The defendant further objects to the sufficiency of
Another and more serious question arises upon the ruling of the court ip refusing to permit the defendant to show a special contract between the defendant and the plaintiffs fixing the amount of the fees for certain of the services. It was objected by the plaintiffs that the evidence was not admissible under the general denial; that, before such matter could be available to the defendant he múst specially allege it in his answer. This view was adopted by the court,
In the opinion in the case last cited the rule is thus stated :
“For, although in the cases before stated, in which the special agreement has been executed or otherwise closed, a general indebitatus assumpsit may be maintained, it is nevertheless true that the special agreement may be given in evidence by the defendant for the purpose of lessening the quantum of damages to which the plaintiff is entitled.”
That this may be inquired into under the general issue we .have no doubt. We are therefore of the opinion that the defendant should have been permitted to introduce the evidence offered, and that substantial error was committed by its rejection.
The judgment will therefore be reversed, and the case will be remanded for a new trial.