Bender v. Shulthis

121 P. 918, 86 Kan. 806, 1912 Kan. LEXIS 392

• Court: Supreme Court of Kansas
• Decided: March 9, 1912
• Docket: No. 17,512
• Status: Published

Opinion

Per Curiam:

According to the answer of Shulthis, James undertook for himself and on his own account, and not for •Shulthis, to procure plans and specifications, and the contract of James with Bender was the personal and private affair of •James. Shulthis having thus destroyed privity between himself and Bender his remedy, if any, was against James. Therefore Render’s demurrer to the counterclaim was properly sustained, and the counterclaim not being reinstated evidence under it against Bender was properly excluded. The jury were properly and sufficiently instructed upon the issues submitted and the evidence and findings fully support the verdict in favor of Bender. The plaintiff sued for the customary and not for the reasonable value of his' services, and it was not proper to submit any other standard to the jury. The findings of the jury render all rulings respectipg the counterclaim against James immaterial. Shulthis has no legal ground of complaint because the demurrer of James to Bender’s evidence was sustained. There is nothing to indicate prejudice or passion on the part of the jury, and those factors being excluded the plaintiff is not harmed if the jury erred in its computation and made the verdict somewhat too small. Other matters discussed do not warrant a retrial of the case and the judgment of the district court is affirmed.