Parker v. Hays , 7 Kan. 412 ( 1871 )

The opinion of the court was delivered by

Kinsman, C. J.:

The defendants in error brought an action against plaintiff in error for $1460, stating the same in two causes. The first set forth, that in the month of February, 1870, the plaintiffs at the request of the defendant hauled the sto.no and constructed upon a certain pier at the railway crossing on Turkey creek, in Coffey county, 196 yards of stone work of the second class of masonry, for which the defendant contracted and agreed to pay the plaintiffs $6.25 per yard, and the further sum of fifty cents per yard for all stone hauled over one mile, and that plaintiffs did haul the stone for the construction of 100 yards of said stone work over one mile. The second cause of action is thus stated:

“ The said plaintiffs further complain and aver that the said defendant is further indebted to them in the further sum of $185 on an account of which the following is a copy:

“ To delivery of 55 yards of stone on the ground at Turkey Creek Bridge, at $8 per yard, $165.

“ To dressing 80 yards of stone at $2.50 per yard, $20.

“ The plaintiffs aver that there is due and unpaid on said amounts the sum of $185.”

The petition prayed judgment for $1460, the amount of both causes of action. The answer was a general denial. The verdict and judgment were for the plaintiff" for the amount claimed.

In the progress of the trial the defendant offered to-prove that there was nothing due defendants on the •second cause of action, and also offered to prove payment thereof. This the court refused to permit to go to the jury on the issues as made up. This point was settled in the case of Marley v. Smith, 4 Kas., 186; at least that case decides the principle involved. If • the pleader • chooses to state his case without setting forth whether his claim arose on contract or tort, or at least on the ■request of defendant, or that the materials were of a certain value, as charged, and a promise to pay therefor, but merely states an indebtedness without stating how it arose, he invites an issue upon whether there is an in- . debtedness, and an examination into that issue by the • testimony; and this can be gone into by the defendant <under a general denial. It was therefore error to exclude proof of payment of the second cause of action, and to .exclude testimony tending to show that there was nothing due thereon. See Quinn v. Lloyd, 41 N. Y. 349, commenting on and distinguishing that case from McKyring v. Ball, 16 N. Y., 297.

It is claimed that it was error to exclude testimony of ■payment of the indebtedness set forth in the first cause of action. Evidently the court did right in e eluding it. "The issues were not framed to admit such testimony. Many other errors are alleged, but as they are not likely to arise on another trial we do,not feel called upon to comment upon them.

For the error indicated the judgment is reversed and .a new trial awarded.

All the Justices concurring.