Brashear v. Rabenstein

Decision Date06 May 1905
Docket Number14,141
Citation71 Kan. 455,80 P. 950
PartiesW. BRASHEAR v. E. C. RABENSTEIN
CourtKansas Supreme Court

Decided January, 1905.

Error from Sumner district court; CARROLL L. SWARTS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE DISTRICT COURT--Statement to the Jury. It is not indispensable that the preliminary statement of the plaintiff's case to the jury shall include all the facts essential to recovery. The facts referred to in the statement need not be stated with exactness, and the court is not authorized to take the case from the jury or to render judgment upon the statement unless some fact be clearly stated or some admission be clearly made which evidence relevant under the pleadings cannot cure, and which, therefore, necessarily and absolutely precludes recovery.

CONTRACTS--Implied. A party not at fault himself may recover in quantum meruit for advancements that he has made upon the faith of a contract which is unenforceable under the statute of frauds, and which the other party refuses to perform.

James Lawrence, for plaintiff in error.

W. W. Schwinn, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

Brashear sued Rabenstein for work and labor performed, money expended and lumber furnished for the defendant's use and benefit, pleading his cause of action in the form of a common count. After issues had been framed, and a jury had been impaneled to try the cause, the plaintiff's attorney made a statement of his case to the effect that Brashear had been a tenant of a farm under a lease; that Rabenstein purchased the farm while the lease was in force, and through an agent arranged to make some improvements on the land; that Brashear and Rabenstein's agent orally agreed that Brashear should perform labor, furnish material, and board men without making any charge therefor, but by way of consideration he should have the farm so long as it was for rent and he should remain there; that Brashear performed his part of the contract, and had gotten into a house constituting part of the improvements when the defendant's agent notified him that he could not have the farm longer; and that the defendant himself subsequently stated to Brashear that the farm was rented to another. Thereupon the defendant moved to exclude all evidence relating to the count in the petition referred to for the reason that the statement of plaintiff's case precluded recovery upon it, and the court, over plaintiff's objection, withdrew it from the consideration of the jury. The ruling is assigned as error, and it was erroneous.

In support of the court's position it is said, in defendant's brief:

"The plaintiff pleaded a good cause of action, but stated to the jury facts which, without additional facts, showed that he had no right to recover on the cause of action set out in his petition, and he failed to state the additional facts (if there were any such) which would entitle him to recover. By his statement he destroyed the force of his petition, and furnished nothing to take its place."

In the case of Jenson v. Lee, 67 Kan. 539, 542, 73 P. 72, it was said:

"Pleading the common counts is still sufficient in this state under the code as it was at common law. If the defendant desired a full statement of the facts constituting the plaintiff's cause of action he should have moved to make the petition more definite and certain. (Meagher v. Morgan, 3 Kan. 372, 87 Am. Dec. 476; Water Power Co. v. McMurray, 24 id. 62; Barons v. Brown, 25 id. 410.) He failed to do this. Therefore the plaintiff was left at large in making his proof."

The facts stated by the attorney for plaintiff are all compatible with a right to recover in quantum meruit for advancements made upon a contract which was unenforceable under the statute of frauds, and which the defendant refused to perform. They are not, therefore, in any sense destructive of the cause of action pleaded or repugnant to the abbreviated statement of the petition. They were, instead entirely...

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21 cases
  • Wilkey v. State ex rel. Smith, 6 Div. 603.
    • United States
    • Alabama Supreme Court
    • December 21, 1939
    ... ... or foreshadowed in defendant's opening statement to the ... jury. This is the well-considered announcement in leading ... cases. Brashear v. Rabenstein, 71 Kan. 455, 80 P ... 950; Martin Emerich Outfitting Co. v. Siegel C. & ... Co., 108 Ill.App. 364; DeWane v. Hansow, 56 ... ...
  • Wilson v. Holm
    • United States
    • Kansas Supreme Court
    • January 24, 1948
    ... ... stated in his pleading.' (Syl. par. 2.) ... To the ... same effect are Brashear v. Rabenstein, 71 Kan. 455, ... 80 P. 950, and Speer v. Shipley, 149 Kan. 15, 85 ... P.2d 999 ... Next it ... is claimed that a ... ...
  • Temple v. Cotton Transfer Company
    • United States
    • Nebraska Supreme Court
    • March 2, 1934
    ...Co., 5 Mackey 8; Wheeler v. Oregon R. & N. Co., 16 Idaho 375, 102 P. 347; Berggren v. Johnson, 105 Kan. 501, 185 P. 291; Brashear v. Rabenstein, 71 Kan. 455, 80 P. 950; Goodman v. Brooklyn Hebrew Orphan Asylum, 165 949; Darton v. Interborough Rapid Transit Co., 110 N.Y.S. 171; Stewart v. Ha......
  • Sherman v. Smika
    • United States
    • Kansas Supreme Court
    • January 24, 1959
    ...evidence relevant under the pleadings cannot cure, and which, therefore, necessarily and absolutely precludes recovery. Brashear v. Rabenstein, 71 Kan. 455, 80 P. 950; Caylor v. Casto, supra; Rodgers v. Crum, 168 Kan. 668, 673, 215 P.2d 190; Wilson v. Holm, 164 Kan. 229, 188 P.2d 899; In re......
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