Bates v. Lyman

• Decision Date: 07 October 1886
• Citation: 35 Kan. 634,12 P. 33
• Parties: SIMEON BATES v. L. N. LYMAN
• Court: Kansas Supreme Court

12 P. 33

35 Kan. 634

SIMEON BATES v. L. N. LYMAN

Supreme Court of Kansas

October 7, 1886

Error from Neosho District Court.

ACTION brought by Bates against Lyman, to recover damages for the alleged breach of a certain written contract made between the parties, whereby the defendant agreed to sell and deliver to the plaintiff 500 bushels of good merchantable corn, at 40 cents per bushel, etc. Trial at the April Term, 1884. Upon the verdict and special findings returned by the jury, the court adjudged that the plaintiff recover of the defendant $ 185, and that the defendant recover of the plaintiff the costs in the action, taxed at $ 85. The plaintiff filed a motion in arrest of judgment and for a new trial, which motion the court overruled. Bates brings the case here. The opinion states the material facts.

Judgment reversed.

T. J Hudson, and C. S. Reed, for plaintiff in error.

Hutchings & Keplinger, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

A preliminary question is presented in the motion made to dismiss the petition in error, upon the ground that it is barred by the statute of limitations. (Laws of 1881, ch. 126 § 2.) The case was tried April 10, 1884, and judgment appears to have been entered upon the same day. A motion in arrest of judgment and for a new trial was filed April 12, 1884, heard April 16, 1884, and upon that day overruled. Among the grounds for a new trial it was alleged in the motion that there were errors of law occurring at the trial, which were excepted to by the plaintiff. Said § 2 provides:

"No proceeding for reversing, vacating or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment, or making of the final order complained of."

The petition in error in this case was filed April 14, 1885, less than a year from the time of the overruling of the motion for a new trial. This court has the authority to reverse, vacate or modify an order that grants or refuses a new trial. (Code, § 542.) Upon the hearing of a motion for a new trial, all of the rulings of the court made during the trial and therein referred to and excepted to at the time they were made, should be again considered by the court. (Backus v. Clark, 1 Kan. 303; DaLee v. Blackburn, 11 id. 190; City of Ottawa v. Washabaugh, 11 id. 124.) As the order complained of is the overruling of the motion for a new trial, and as the petition in error has been filed within one year from the making of the order complained of, the motion to dismiss must be overruled. (28 Kan. 769; 29 id. 476, 481.)

The plaintiff, for his cause of action against the defendant, alleged in his petition that on September 1, 1881, he entered into a contract with the defendant whereby the latter agreed to furnish him five hundred bushels of good merchantable corn, at forty cents per bushel, to delivered at the Douglas farm, west of Thayer, or in the vicinity of Altoona, Kansas, at the option of the defendant; the corn to be measured at four thousand cubic inches to the bushel, and to be cribbed by December 1, 1881. The petition also alleged that the plaintiff paid the defendant two hundred dollars, as the purchase-price of the corn; that on April 10, 1882, he demanded of the defendant delivery of the corn contracted for; that the defendant refused to comply with his contract and failed to deliver any corn, and at the time of such refusal, good merchantable corn was worth at the place of delivery, eighty-five cents per bushel.

The defendant in his answer stated, among other things:

"That in pursuance of the written contract between himself and plaintiff, he purchased five hundred bushels of good merchantable corn, and caused the same to be cribbed at the place designated in the contract, during the month of November, 1882, and held the same until April 10, 1883; that plaintiff refused to receive the corn, and wholly failed to comply with the conditions of the contract."

To this answer the plaintiff filed a reply, denying generally the allegations contained in the answer, except those...