Hennis v. Bowers , 79 Kan. 463 ( 1909 )

The opinion of the court was delivered by

Smith, J.:

A demurrer to the plaintiff’s evidence on a trial is not a proper proceeding to test the sufficiency of a petition, but goes only to the sufficiency of the evidence. If the trial be to a jury, as in this case, and the pleadings, liberally construed, present any issue upon which a verdict and judgment may be based, and there is any evidence which fairly tends to support the issue in favor of the plaintiff, the demurrer should be overruled and the trial should proceed. Where there are several defendants, and the evidence does not fairly tend to support any issue upon which a judgment might be based against one or more of them, a demurrer properly presented should be sustained as to such one or more, and the trial may proceed as to the remainder. (Civ. Code, § 396.)

As against the defendant bank, Davenport and Alcid Bowers, this much, at least, was alleged in the petition : that Bowers, acting as the agent of the bank and Davenport, took posséssion of certain property belonging to the plaintiff, under the pretense of foreclosing two chattel mortgages, and sold, or pretended to sell, such property for the sum of $180, and neglected and refused to account to the plaintiff for the value of the stock, which plaintiff alleged was $270, or for the- sum of $180, for which -Bowers pretended to sell it. The plaintiff also alleged that the chattel mortgages were not due, and that the total amount remaining unpaid thereon did not exceed $126, including interest and proper expenses of sale. He further alleged that he had thereby suffered actual damages in the sum of $144, for which sum, with $100 exemplary damages, he prayed judgment. The answering defendants alleged that there was $112 due on the mortgage to the bank, and $48.47 due to Davenport, and also alleged that they had sold the property to Nora Bowers for the sum of $180. The defendants did not offer to account for the balance of $19.53, but, on the other hand, denied the plaintiff’s ownership of the stock. The reply was a general denial.

On the trial there was evidence tending to support the allegations of the petition. If the jury had found that the plaintiff was the owner of the property he would have been, under the answer alone, entitled to a verdict and a small judgment. The evidence was conflicting as to whether there was anything due on the mortgages at the time the property was taken, and as to whether the plaintiff offered to pay the amount claimed before the property was actually sold, which, of course, he had a right to do.

It is true the plaintiff pleaded a conspiracy among all of the defendants—including Davenport, who was not summoned'—to get possession of his property and cheat him; but, as we have seen, there was a cause of action stated as to some, at least, of the defendants, which did not depend upon the alleged conspiracy, and there was some evidence in support of this cause of action. The issue should have been submitted to the jury under proper instructions.

The judgment is reversed and the cause remanded for a new trial.