Oil Well Supply Co. v. Johnson

Supreme Court of Kansas

Oil Well Supply Co. v. Johnson

98 P. 381, 78 Kan. 751

CourtSupreme Court of Kansas

DecidedMarch 7, 1908

DocketNo. 15,426

StatusPublished

Cited by2 cases

This text of 98 P. 381 (Oil Well Supply Co. v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Oil Well Supply Co. v. Johnson, 98 P. 381, 78 Kan. 751 (kan 1908).

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[755]*755The opinion of the court was delivered by

Graves, J.:

Complaint is made of instruction No. 6, the objection being that it permitted the jury to find for the plaintiff upon a state of facts contrary to the averments of his petition and in opposition to his proof. The petition avers that the note was executed by E. N. Burr, and that the property described in the mortgage was then owned by him. The copy of the note and mortgage attached to the petition indicate the facts to be as alleged. There is no suggestion that the partnership of E. N. Burr & Co. was in any way connected with or concerned in the transaction. While testifying as a witness the plaintiff appeared to be familiar with the firm of E. N. Burr & Co., and also with the business of E. N. Burr individually. He worked for E. N. Burr & Co. at Paola in 1905, and for E. N. Burr, individually, during January and February, 1906, at Topeka. They operated in different fields. Apparently the plaintiff was in a position to know the business of each and to plead and testify understandingly. The rule that a plaintiff must recover, if at all, upon the facts stated in his petition is well settled. (11 Cyc. 158; Brenner v. Bigelow, 8 Kan. 496; K. P. Rly. Co. v. Dunmyer, 19 Kan. 539; A. T. & S. F. Rly. Co. v. Irwin, 35 Kan. 286, 10 Pac. 820; St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543; 18 Pac. 720; Ins. Co. v. Thorpe, 40 Kan. 255, 19 Pac. 631; Newby v. Myers, 44 Kan. 477, 24 Pac. 971; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; C. K. & W. Rly. Co. v. Bell, 1 Kan. App. 71, 41 Pac. 209.)

To avoid inconvenience from the enforcement of this rule ample opportunity is afforded under the statute to amend the petition at any time before judgment. If the plaintiff was deceived by E. N. Burr, and thereby induced to accept a mortgage on partnership property, which fact was not discovered until after the commencement of this trial, he should have obtained leave [756]*756to amend his petition, and then stated the facts as they really were. Not having done so, the case must be determined upon the petition as it is. The instruction of the court, of which complaint is made, presented to the jury an issue which was not in the case, and for that reason was erroneous.

Other questions are discussed, but as this decides the case none of them needs- to be considered. The judgment is reversed, with direction to proceed in accordance with the views herein expressed.

Burch, Mason, Smith, Porter, Benson, JJ., concurring.

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[755]*755The opinion of the court was delivered by

Graves, J.:

Complaint is made of instruction No. 6, the objection being that it permitted the jury to find for the plaintiff upon a state of facts contrary to the averments of his petition and in opposition to his proof. The petition avers that the note was executed by E. N. Burr, and that the property described in the mortgage was then owned by him. The copy of the note and mortgage attached to the petition indicate the facts to be as alleged. There is no suggestion that the partnership of E. N. Burr & Co. was in any way connected with or concerned in the transaction. While testifying as a witness the plaintiff appeared to be familiar with the firm of E. N. Burr & Co., and also with the business of E. N. Burr individually. He worked for E. N. Burr & Co. at Paola in 1905, and for E. N. Burr, individually, during January and February, 1906, at Topeka. They operated in different fields. Apparently the plaintiff was in a position to know the business of each and to plead and testify understandingly. The rule that a plaintiff must recover, if at all, upon the facts stated in his petition is well settled. (11 Cyc. 158; Brenner v. Bigelow, 8 Kan. 496; K. P. Rly. Co. v. Dunmyer, 19 Kan. 539; A. T. & S. F. Rly. Co. v. Irwin, 35 Kan. 286, 10 Pac. 820; St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543; 18 Pac. 720; Ins. Co. v. Thorpe, 40 Kan. 255, 19 Pac. 631; Newby v. Myers, 44 Kan. 477, 24 Pac. 971; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; C. K. & W. Rly. Co. v. Bell, 1 Kan. App. 71, 41 Pac. 209.)

To avoid inconvenience from the enforcement of this rule ample opportunity is afforded under the statute to amend the petition at any time before judgment. If the plaintiff was deceived by E. N. Burr, and thereby induced to accept a mortgage on partnership property, which fact was not discovered until after the commencement of this trial, he should have obtained leave [756]*756to amend his petition, and then stated the facts as they really were. Not having done so, the case must be determined upon the petition as it is. The instruction of the court, of which complaint is made, presented to the jury an issue which was not in the case, and for that reason was erroneous.

Other questions are discussed, but as this decides the case none of them needs- to be considered. The judgment is reversed, with direction to proceed in accordance with the views herein expressed.

Burch, Mason, Smith, Porter, Benson, JJ., concurring.

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98 P. 381, 78 Kan. 751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oil-well-supply-co-v-johnson-kan-1908.

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