Roseman v. Nienaber

166 P. 492, 101 Kan. 260, 1917 Kan. LEXIS 69

Opinion

The opinion of the court was delivered by

Burch, J.:

In a petition for a rehearing the defendant presents certain.new facts which he claims to be sufficient, if established, to warrant a judgment in his favor. The facts were all known to the defendant at the time the action was commenced, and were not presented to the district court by pleading, evidence, or other means. It is now too.late to shift the grounds of defense.

In a supplemental petition for a rehearing the defendant suggests that this court shifted the ground of the plaintiff’s action from an oral contract to a written contract, deducible from the terms of a deed, a contract, and a will construed together. While it is true the petition pleaded an oral contract, two of the written instruments were set out as exhibits, and the other was referred to and was introduced in evidence, so that when the court came to render judgment the actual transaction was clearly before it. The principal question argued in the briefs filed in this court was whether or not the written instruments should be construed together, and if so, their legal effect.

The defendant was afforded full opportunity for a fair trial, and should have disclosed to the district court, by way of answer, his true situation. He can not be permitted to take a sporting chance at beating the plaintiff at her own game, sit by until the case has been finally disposed of by this court, and then spring a defense which would necessitate amending the answer and beginning all over again.

Concerning the merits of the proposed defense, it may be observed that the written instruments did not disclose a sale of the farm conditioned upon the gift of personal property to the defendant by will. The defendant’s own testimony indicated that no such condition was attached to the sale.

The petition for a rehearing is denied.