39 Kan. 452 | Kan. | 1888
The opinion of the court was delivered by
The defendant demurred to the plaintiffs’ bill of particulars upon the following grounds:
“1. That the causes of action therein stated are improperly joined, and not numbered as required by law.
“ 2. That the said bill of particulars or petition herein filed does not state facts sufficient to constitute a cause of action.”
This demurrer was sustained by the court below, and the plaintiffs’ action dismissed.
We think the plaintiffs’ bill of particulars set forth only one cause of action, and therefore that the first ground of the defendant’s demurrer is untenable. The bill of particulars set forth an account between the plaintiffs and the defendant running from July 17, 1883, up to September 14, 1885, and during all that time there was a balance due in favor of the plaintiffs and against the defendant. This balance at all times constituted one, and only one, cause of action. (Waffle v. Short, 25 Kas. 503.) But even if this account had constituted several causes of action, still they could all have rightfully been joined in one action, for they are all founded upon contract. (Civil Code, § 83, subdiv. 2.) And further, a demurrer will not lie against a pleading supposed to be defective only in not separately numbering the several causes of action supposed to be stated therein. (Civil Code, § 89.)
But the defendant, by the second ground of his demurrer, also claimed that the bill of particulars did not state any cause of action. We think it did. Interest may be recovered upon a balance due ou an account. (Gas Co. v. Schliefer, 22 Kas. 468.) And certainly where the parties expressly agreed that interest should be paid on any balance that might be due at
The judgment of the court below will be reversed, and the cause remanded with the order that the defendant’s demurrer be overruled; and for such other and further proceedings as may be proper in the case.