Donahey v. Moore

• Decision Date: 12 January 1918
• Docket Number: 20,971
• Citation: 102 Kan. 193,170 P. 389
• Parties: JOHN N. EAGAN and BERT DONAHEY, Appellees, v. PERCY MURRAY and EMERY L. MOORE, Appellants
• Court: Kansas Supreme Court

170 P. 389

102 Kan. 193

JOHN N. EAGAN and BERT DONAHEY, Appellees, v. PERCY MURRAY and EMERY L. MOORE, Appellants

No. 20,971

Supreme Court of Kansas

January 12, 1918

Decided January, 1918.

Appeal from Sherman district court; CHARLES I. SPARKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SALE OF JACK--Breach of Warranty--Petition States Cause of Action. Ordinarily, a petition which narrates several distinct breaches of a valid contract states a cause of action with sufficient precision against the party who breached the contract, although the prayer may be for alternative relief and a cause of action so pleaded is good against a demurrer.

2. SAME -- Breach of Warranty -- Petition -- Prayer for Relief. The prayer of a petition is merely the pleader's idea of the relief to which he is entitled; it is not a part of the statement of the cause of action; and if the cause of action is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper legal redress, which may or may not conform in whole or in part to the relief prayed for by the pleader.

3. SAME--Breach of Warranty--Burden of Proof. Where a vendor sells a chattel to a vendee upon a warranty that the chattel will measure up to a certain standard of usefulness, and agrees to accept a return of the chattel if it fails in the matters covered by the warranty, and where the facts touching the alleged failure under the warranty are within the knowledge of the vendee, or readily ascertainable by him, and not within the knowledge of the vendor, nor readily accessible to him, it is proper for the court to impose on the vendee the burden of showing that the chattel did not measure up to the warranty.

4. SAME--No Prejudicial Error in Record. Errors assigned on instructions, incompetency of evidence, and its insufficiency to sustain a verdict, examined, and not sustained.

John Hartzler, and C. C. Perdieu, both of Goodland, for the appellants.

E. F. Murphy, of Goodland, for the appellees.

OPINION

DAWSON, J.:

The plaintiffs recovered judgment against the defendants on a promissory note for $ 300, given in payment for a breeding jack which plaintiffs had sold to the defendant upon a warranty that it would beget forty per cent of foals, and upon an agreement to take back the animal if his breeding record did not fulfill the warranty. The contract of sale was referred to in the promissory note, and a copy of the contract was attached to plaintiffs' petition. The contract also provided that in case of a return of the animal, the defendants were to turn over the breeding accounts to the plaintiffs, and to return the animal in good condition. The petition alleged default of payment of the note and--

"That at all times since the execution and delivery of said note, the said defendants and each of them have at all times failed, neglected and refused and still refuse to either pay said note, or to deliver said jack, or turn over said accounts to the plaintiffs, or either of them."

The prayer was for judgment on the note, or for a return of the jack and for a delivery of the breeding accounts according to the contract.

Defendants' demurrer to plaintiffs' petition was overruled, and they answered, alleging that the jack did not beget the guaranteed percentage of foals; that the plaintiffs accepted a return of the animal; and that copies of the breeding accounts were delivered to plaintiffs. The plaintiffs' reply denied the matters pleaded in defendants' answer.

The cause was tried to a jury and a general verdict for plaintiffs was rendered.

Defendants assign error, (1) in overruling the demurrer to plaintiffs' petition; (2) in the instructions; (3) in admission of incompetent evidence; and (4) that verdict was contrary to the evidence.

Touching the particular point raised by the demurrer, defendants contend that if the petition stated any cause of action it was based upon two conflicting theories:

"First--One theory is the enforcement of the contract and recovery of consideration for the jack.

"Second--The rescission of the contract and recovery of the jack and accounts."

Neither conflict nor inconsistency appears. The petition pleaded all the pertinent facts--the execution of the note, the contract of sale, the default of payment, the failure to return the animal and to turn over the accounts. Surely such a petition was good as against a demurrer. (The State, ex rel., v. Gerhards, 99 Kan. 462, 464, 162 P. 1149.) The petition stated a cause of action upon a single definite theory--plaintiffs' right to recover on account of these several defaults--and such a pleading violated no rule laid down in Grentner v Fehrenschield, 64 Kan. 764, 68 P. 619, nor any other rule of good pleading. Plaintiffs' action was founded on breach of contract. The right to a return of the jack and a delivery of the accounts was pursuant to the contract, and did not rest...