City of Ottawa v. Ottawa Gas & Electric Co.

150 P. 524, 96 Kan. 225, 1915 Kan. LEXIS 353

• Court: Supreme Court of Kansas
• Decided: July 10, 1915
• Docket: No. 19,615
• Status: Published

Opinion

The opinion of the court was delivered by

Burch, J.:

The action was one to recover an installment of money due the city under the terms of an ordinance granting the defendant the use of the streets of' the city in supplying its inhabitants with gas and electricity. The answer pleaded certain facts which it was claimed relieved the defendant from its obligation. The reply denied each and every material allegation of the answer except those which were specifically admitted. In a second paragraph of the reply it was stated that all the matters and things alleged in the answer existed at the time of a trial of a former suit for another installment due under the same ordinance, that such matters and things were set up or should have been set up as a defense to the first action, and consequently that they were there fully adjudicated. After a trial the court made findings of fact, one of which was that sufficient evidence had hot been introduced to sustain the defense referred to. Judgment was rendered for the plaintiff and the defendant appeals.

The defendant contends that the' matters constituting the defense were admitted by the reply. Very clearly the reply is not open to such an interpretation. It expressly denied everything not specifically admitted and specifically admitted nothing. Its import was that the averments of the answer were not true at all, but that if the defendant should succeed in establishing them all the facts occurred before the former trial and were then adjudicated. Unless supplemented by the claimed admission of the plaintiff the defendant’s evidence was • not sufficient to defeat recovery and the judgment of the district court is affirmed.