12 Kan. 420 | Kan. | 1874
The opinion of the court was delivered by
Two questions are presented in this case. One arises on a motion to set aside a summons. The summons commenced in this form: “The State'of Kansas, Lyon county, ss.: To the Sheriff of Lyon county,” etc. The constitution provides that “The style of all process shall be 'The State of Kansas.’” (Art. 3, § 17.) It is insisted that “The State of Kansas”- is limited by Lyon county, and that the command to the sheriff is from the county and not from the state. This error, if error it be, is purely technical, and does not affect .the substantial rights of the party, and may therefore be disregarded.
The second question arises on the rejection of testimony. The action was on a note and mortgage. The answer set up two defenses, 1st, a general denial, and 2d, a counterclaim, or set-off. In this second defense the defendant alleged that the note and mortgage were a part of and grew out of one entire transaction, as follows: That a short time before the execution of the note Truitt and Baird were equal partners in the nursery business, Truitt being ignorant and Baird thoroughly conversant with the business; that Baird represented that he had a large amount of nursery stock in Quincy, 111., which he would put into the capital-stock of the firm at as low a price as such stock was selling in Quincy, as against which Truitt might furnish money or property of equal value; that to this, Truitt assented; that in pursuance thereof Baird turned in ten thousand apple trees at $50 per thousand, falsely and fraudulently representing that such trees were selling at $50 per thousand in Quincy, when in fact he had purchased them there at $35 per thousand; that Truitt, ignorant of the fact, and relying on Baird’s representations, turned
To determine whether there was any error in this ruling, we must inquire whether in the second defense stated in the answer there be sufficiently pleaded any counterclaim or set-off, and if so whether the testimony ruled out tended to prove any allegation of such counterclaim or set-off. In reference to the first question, it would seem that the pleader had attempted to incorporate in the one defense two separate defenses, one a cause of action growing out of a contract to furnish money and property to the partnership, and the other for damages resulting from false representations in the sale of an interest in the partnership. These should have been
The other question is, whether the testimony rejected tended to prove any allegation in this defense, and was competent evidence. The contract of plaintiff was to put into the partnership certain nursery stock “ at as low a price as such stock was selling in Quincy, Illinois,” and the question was, What was