Spillman v. Union Portland Cement Co. , 81 Kan. 775 ( 1910 )

The opinion of the court was delivered by

Graves, J.:

The first and most important error of which the defendant complains is the refusal of the" court to sustain the motion to require the plaintiff to elect between his several causes of action and to make his petition more definite and certain. It is conceded that a cause of action for the reformation of a written instrument and one for the enforcement of the instrument after it is corrected may be united in the same petition, but it is contended that when such causes of action are in their nature wholly unlike, as in this case, •one being equitable and the other at law, they should be separately stated, so that each can be clearly understood and tried as if it constituted an independent action. In this claim we fully- concur with the defendant, and think that the court might well have required the plaintiff to state separately his different causes of action and thus make the issues clear and specific. But this is not the proposition here presented. The question is, Did the refusal of the court to do so work material prejudice to the defendant? If not, there is no cause of complaint. Error which justifies a reversal must be material and prejudicial to the substantial rights of the complaining party. (Civ. Code 1909, § 581.) An examination of the whole record shows that all the questions involved in the controversy between these parties were fully and clearly presented to the jury by the instructions of the court, and the special findings of fact found by the jury indicate that each separate fact was clearly understood and answered without the least confusion or misapprehension.

Complaint is made that the court refused certain instructions requested by the defendant. The court, however, in other instructions presented the same questions quite fully and fairly. Error, therefore, can not be predicated upon the refusal to give those requested.

The judgment seems to have been fairly reached, and we are unable to find any material error in the proceedings. The judgment is affirmed.