Meagher v. Morgan

3 Kan. 372

Opinion

By the Cowrt,

Safford, J.

The principal question presented by the record in this case is whether or no the common counts for goods sold and delivered, work and labor done, money had and received, &c., when set out in a pleading under the Code, contain each in itself facts sufficient to constitute a c.ause of action or grounds of defense.

¥e are of the opinion that this manner of pleading is sufficient under the Code, as it was under the practice before the Code. To illustrate, take the plea objected to in this case. It alleges an indebtedness of the plaintiff to the defendant at the commencement of the suit, and also states the facts out of which it arose. Then follow allegations of demand, non-payment and prayer for judgment. These allegations if established by proof would most certainly show a right to recover, and this is all the Code requires. But if the opposing party objected to the plea in this form, he could under the Code, move to have it made more specific, (section 128,) and failing to avail himself of this privilege, he certainly ought not to be permitted to deprive the other party of the benefit of his defense.

In this case the plaintiff objected to any testimony being given by the defendant under his third ground of defense* because it was stated in tbe form of the common counts; and the court sustained the ruling. We think the court erred in so doing. The testimony offered should have gone to the jury, and the more especially since the plaintiff had interposed no objection at all to the plea, but had replied to it and entered upon tbe trial. Holding as we do that sucb plea was sufficient, the plaintiff waived any objection be might bave bad to it on account of indefiniteness or uncertainty by proceeding as be did.

Tbe judgment of tbe District Court is reversed and tbe cause remanded with instructions to sustain tbe motion for a new trial.

All tbe justices concurring.