Sullivan v. Darratt

109 P. 777, 83 Kan. 799, 1911 Kan. LEXIS 245

Opinion

Per Curiam:

All the plaintiffs were required to prove, to-make their case, was employment to effect a trade, performance-of the service, and the amount of their compensation. This they did. It was not essential to recovery that they should allege or-prove that they were licensed agents. The court could not. take judicial notice of the ordinances of the city of Wichita, and none-was pleaded or proved. Unfaithfulness, dual employment and the like are defenses which are waived unless pleaded, and no such defense was pleaded. A jury properly instructed might, have interpreted the employment as that of middlemen only, in which event a commission from both parties to the trade would have been permissible.

The judgment of the district court is reversed and the causéis remanded for a new trial.