Custer v. Royse, 21,689

CourtUnited States State Supreme Court of Kansas
Writing for the CourtDAWSON, J.:
Citation104 Kan. 339,179 P. 353
PartiesBESSIE CUSTER, Appellant, v. B. R. ROYSE, Appellee
Docket Number21,689
Decision Date08 March 1919

179 P. 353

104 Kan. 339

BESSIE CUSTER, Appellant,
v.

B. R. ROYSE, Appellee

No. 21,689

Supreme Court of Kansas

March 8, 1919


Decided January, 1919.

Appeal from Haskell district court; GEORGE J. DOWNER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EJECTMENT -- Evidence Should Have Been Submitted to Jury. The evidence to support an action in ejectment examined, and held sufficient to require its submission to a jury, and that an instructed verdict thereon was erroneous.

2. SAME -- Damages -- Question for Jury. The evidence to support a claim for damages incident to an alleged wrongful dispossession considered, and held sufficient against an instructed verdict.

3. SAME--Statement of Counsel--Evidence--Issues Enlarged by Consent of Parties. In an action in ejectment and for incidental damages, where counsel for plaintiff, in his opening statement to the jury, was permitted, without objection, to give an outline of the facts which he proposed to prove touching the defendant's conversion of plaintiff's personal property situated on the premises at and about the time defendant wrongfully dispossessed the plaintiff, and where the trial court, without objection from defendant, permitted evidence at length to be introduced to establish the plaintiff's damages for such conversion, although the facts were not pleaded, or were insufficiently pleaded, in the petition to justify such opening statement and to warrant the introduction of such evidence, it is held that the pleadings should be construed as being broad enough to include those elements of damage, or that the issues were thus enlarged by consent of parties.

John W. Davis, of Greensburg, for the appellant.

Carl Van Riper, and Albert Watkins, both of Dodge City, for the appellee; L. A. Madison, and Arthur C. Scates, both of Dodge City, of counsel.

OPINION

[104 Kan. 340] DAWSON, J.:

This was an action in ejectment and for damages.

The plaintiff and defendant both held warranty deeds from a common grantor--the plaintiff directly, and the defendant through an intermediate grantee. Plaintiff's deed was of later date than the one through which defendant claimed; but plaintiff claimed to have been in lawful possession when defend ant's grantor obtained his deed from the common grantor, and that all parties concerned had notice of her possession.

The court directed a verdict in favor of defendant; and the main question in this appeal is whether there was sufficient evidence to require the cause to be submitted to a jury's determination.

The evidence disclosed that in October, 1913, G. L. Baker, the patentee and owner of the property (a quarter section of land) made a written lease of it for one year from November 1, 1913, with the privilege of renewal for a like term, to W. A. Custer, agent. The instrument did not disclose the party for whom W. A. Custer was agent, but the evidence, or part of it, tends to show that he was the agent of the plaintiff. The evidence also partly tends to show that plaintiff took and held possession of the land pursuant to this lease, and that she put a man by the name of Kephart on the land to farm it, and that Kephart occupied the premises with his family until he was ejected by the sheriff [179 P. 354] pursuant to a default judgment by a justice of the peace, in an action for forcible detention wherein this appellee was plaintiff and Kephart and another, not this plaintiff, were defendants. About the time of that ejectment, May 28, 1916, and to satisfy costs in that action, the sheriff seized and sold two or three hundred dollars' worth of plaintiff's grain and feed which she had stored and stacked on this land.

[104 Kan. 341] During the year 1915, while plaintiff's alleged lease was in force, on May 1, Baker gave W. A. Custer a three months' option, in writing, to purchase the land at a price of $ 1,800. There was a consideration of one dollar paid for this option. Plaintiff says she paid the dollar. This option bound the owner, G. L. Baker, upon satisfaction of specified terms, to deliver a general warranty deed and an abstract showing good title, and provided...

To continue reading

Request your trial
12 practice notes
  • Phillips v. Commercial National Bank, 26,084
    • United States
    • United States State Supreme Court of Kansas
    • October 10, 1925
    ...careful reading of it satisfies us that it was sufficient to require the submission of the case to the jury." (See, also, Custer v. Royse, 104 Kan. 339, 341, 342, 179 P. 353; Stice v. Railway Co., 110 Kan. 763, 205 P. 616.) 2. Nor can it be declared as a matter of law that plaintiff assumed......
  • Meneley, by Myers v. Montgomery, 33135.
    • United States
    • United States State Supreme Court of Kansas
    • January 23, 1937
    ...See, also, Hyland v. Railway Co., 96 Kan. 432, 151 P. 1107; Wilhite v. Mason, 102 Kan. 461, 464, 170 P. 814; Custer v. Royse, 104 Kan. 339, 340, 179 P. 353, and citations. If appellee's evidence, when considered in its most favorable light to her, presented a situation where reasonable mind......
  • Fritchen v. Jacobs, 29,509
    • United States
    • United States State Supreme Court of Kansas
    • March 7, 1931
    ...informally amended to supply whatever was technically lacking. ( Hartwell v. Manufacturing Co., 78 Kan. 259, 97 P. 432; Custer v. Royse, 104 Kan. 339, 343, 179 P. 353; Illinois Life Ins. Co. v. Young, 118 Kan. 308, 321, 322, 235 P. 104.) In Beachy v. Jones, 108 Kan. 236, 195 P. 184, it was ......
  • Beachy v. Jones, 22,908 and 22,935
    • United States
    • United States State Supreme Court of Kansas
    • January 8, 1921
    ...or as if the issues had been enlarged by consent of parties. (Hartwell v. Manufacturing Co., 78 Kan. 259, 97 P. 432; Custer v. Royse, 104 Kan. 339, 343, 179 P. 353.) Since it would have been proper for the trial court to have granted the defendant Jones the relief against Campbell which his......
  • Request a trial to view additional results
12 cases
  • Phillips v. Commercial National Bank, 26,084
    • United States
    • United States State Supreme Court of Kansas
    • October 10, 1925
    ...careful reading of it satisfies us that it was sufficient to require the submission of the case to the jury." (See, also, Custer v. Royse, 104 Kan. 339, 341, 342, 179 P. 353; Stice v. Railway Co., 110 Kan. 763, 205 P. 616.) 2. Nor can it be declared as a matter of law that plaintiff assumed......
  • Meneley, by Myers v. Montgomery, 33135.
    • United States
    • United States State Supreme Court of Kansas
    • January 23, 1937
    ...See, also, Hyland v. Railway Co., 96 Kan. 432, 151 P. 1107; Wilhite v. Mason, 102 Kan. 461, 464, 170 P. 814; Custer v. Royse, 104 Kan. 339, 340, 179 P. 353, and citations. If appellee's evidence, when considered in its most favorable light to her, presented a situation where reasonable mind......
  • Fritchen v. Jacobs, 29,509
    • United States
    • United States State Supreme Court of Kansas
    • March 7, 1931
    ...informally amended to supply whatever was technically lacking. ( Hartwell v. Manufacturing Co., 78 Kan. 259, 97 P. 432; Custer v. Royse, 104 Kan. 339, 343, 179 P. 353; Illinois Life Ins. Co. v. Young, 118 Kan. 308, 321, 322, 235 P. 104.) In Beachy v. Jones, 108 Kan. 236, 195 P. 184, it was ......
  • Beachy v. Jones, 22,908 and 22,935
    • United States
    • United States State Supreme Court of Kansas
    • January 8, 1921
    ...or as if the issues had been enlarged by consent of parties. (Hartwell v. Manufacturing Co., 78 Kan. 259, 97 P. 432; Custer v. Royse, 104 Kan. 339, 343, 179 P. 353.) Since it would have been proper for the trial court to have granted the defendant Jones the relief against Campbell which his......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT