Foster Lumber Co. v. Kelly , 9 Kan. App. 377 ( 1899 )

The opinion of the court was delivered by

Mahan, P. J. :

We are of the opinion that the court abused its discretion in not granting the plaintiff time to prepare to meet the changed conditions made by the pleadings, after permitting the defendant to withdraw his third defense. The petition states facts upon which the plaintiff had a right to recover the market value of the lumber taken by the defendant, without regard to whether it was taken wrongfully or rightfully. The third.count of the answer admitted the taking of a specific amount of lumber of a certain value and left no controversy except as to the amount taken. There was no occasion to determine whether the plaintiff had waived a tort and was suing upon contract, or whether it was insisting upon a recovery by reason of a tort. It sought to recover the value of the lumber only!

The court instructed the jury that the plaintiff could not recover unless it proved that the taking was wrongful and without the knowledge and consent of the plaintiff, and refused to instruct the jury that if they believed the defendant had taken the plaintiff’s lumber and converted it to his own use the plaintiff might recover the market value thereof, whether defendant took it with or without the consent of the plaintiff. The word ‘‘wrongful ’ ’ was not ah essential allegation of the plaintiff’s case and ought to have been treated as surplusage. The real gist of the action was the recovery of the value of the property of the plaintiff had, retained and used by the defendant. If was not claimed that the defendant had ever paid for it. He admitted that he had not. There was sufficient evidence, uncontradicted, to sustain a verdict and judgment for the plaintiff, and the evidence did not sustain the verdict and judgment for the defendant. The court should have sustained the motion for a new trial.

The judgment is reversed and the case remanded, with directions to sustain the motion for a new trial, to be had in accordance with the views herein expressed.