Dodson v. Moran

• Citation: 168 P. 841,101 Kan. 592
• Decision Date: 10 November 1917
• Docket Number: 20,456
• Parties: D. W. DODSON, doing business as the CEMENT STAVE SILO COMPANY, Appellee, v. C. F. MORAN, Appellant
• Court: Kansas Supreme Court

168 P. 841

101 Kan. 592

D. W. DODSON, doing business as the CEMENT STAVE SILO COMPANY, Appellee, v. C. F. MORAN, Appellant

No. 20,456

Supreme Court of Kansas

November 10, 1917

Decided July, 1917.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEFECT OF PARTIES--Not Raised by Pleadings--Treated as an Issue upon the Trial--Waiver. A defect of parties should be raised in the answer or reply, but where the question is not so raised and the parties offer evidence upon the question and treat it as an issue in the case and the court instructs the jury thereon neither party can insist, upon an appeal, that the question had been waived by the failure to raise the question in the pleadings.

2. DUTY OF JURORS--Must Accept and Follow Instructions. It is the bounden duty of jurors to accept and follow implicitly the law as expounded to them by the court, and where they disregard the instructions and return a verdict in plain violation of them, the verdict should ordinarily be set aside.

Paul Brown, and Silas S. Brown, both of Wichita, for the appellant.

Fred Stanley, Claude C. Stanley, Benjamin F. Hegler, and George Siefkin, all of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action brought by D. W. Dodson to recover from C. F. Moran the balance of the price of a cement silo which Dodson had built for Moran. The action was begun in the city court, and from the judgment in that court the defendant took an appeal to the district court. An answer was filed by the defendant alleging that the silo built was defective and worthless, and he therefore asked to recover the amount he had already paid upon it. He also alleged that because of defects and the unfitness of the silo the ensilage placed therein was spoiled, and he presented claims for board furnished to plaintiff's men and for certain other things furnished to plaintiff during the building of the silo. This answer, it appears, was subsequently withdrawn. However, the same defenses were set forth by defendant in his opening statement to the jury, but there was no claim that the plaintiff was not a proper party to bring the action. A verdict and judgment in favor of the plaintiff for $ 157.50 was given, and the defendant appeals.

Although not mentioned in the answer filed or in the statement of defenses, defendant offered testimony tending to show that before the action was begun Dodson had transferred the claim to a partnership composed of himself and Kent Merry, and the jury returned a special finding to the effect that the plaintiff had transferred the claim against the defendant to the partnership before the commencement of the action.

On this appeal defendant contends that the action was not brought by the real party in interest; that the special finding is fatally inconsistent with the general verdict; and, also, that in returning a verdict the jury utterly disregarded the instructions of the court.

Under the code, actions must be prosecuted in the name of the real party in interest. The objection should have been raised by the defendant in the answer which he filed or in the statement of his defenses. However, testimony on the question was received without objection, and it was treated as an issue in the...