Knapka v. Linck , 1872 Ky. LEXIS 428 ( 1872 )

Opinion by

Judge Lindsay :

The circuit court committed no error, either in instructing the jury or in admitting or excluding testimony. Appellant, by his cross-petition, charges directly that appellee is indebted to him in the sum1 of sixty-five dollars for one cow sold and delivered at that price. To this paragraph there is no sufficient reply; appellee merely denies that he is indebted to appellant in the sum- of sixty-five dollars, or in any other sum for a cow sold and delivered to him at the price stated or any other price.

He in effect pleads a conclusion of law. He does not deny that the cow was sold and delivered to him at the agreed price of sixty-five dollars; nor does he allege that he has paid or otherwise extinguished the debt.

This court has repeatedly held that such a plea raises no issue and is entitled to no consideration. (Haggard v. Hay, 13 B. Monroe 175).•

Nor can the judgment be upheld under the provisions 156 section of the civil code, because proof was heard conducing to show that the cow had been paid for. There can be no variance between the allegation in a pleading, and the proof, unless the pleading contains an allegation of fact, or raises some issue of fact. This pleading does neither. Appellant was called upon to prove nothing, and could not be required under it to rebut, explain or contradict any proof that might be offered.

Lee, for appellant. Perrin, for appellee.

He had the right to take his claim! for the cow for confessed even after verdict against him.

Wherefore the judgment is reversed and the cause remanded for a new trial consistent with this opinion.