Fox v. Ryan

• Decision Date: 12 June 1926
• Docket Number: 26,223
• Citation: 246 P. 520,121 Kan. 172
• Parties: JENNIE FOX, Appellant, v. W. H. RYAN, Appellee
• Court: Kansas Supreme Court

246 P. 520

121 Kan. 172

JENNIE FOX, Appellant, v. W. H. RYAN, Appellee

No. 26,223

Supreme Court of Kansas

June 12, 1926

Decided January, 1926.

Appeal from Crawford district court, division No. 2; GEORGE F BEEZLEY, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACTS--Pleading--Avoidance in Reply. The allegations of avoidance in a reply considered, and held sufficient against a demurrer.

P. Louis Zickgraf and R. L. Robertson, both of Pittsburg, for the appellant.

B. S. Gaitskill, of Girard, and A. J. Curran, of Pittsburg, for the appellee.

OPINION

HARVEY, J.:

This appeal involves a question of pleading. The petition contains five causes of action. In the first, plaintiff alleges defendant was her agent to rent certain farms; that he was authorized to rent them for cash, $ 450 each per year; that he did in fact rent them for $ 640 each per year, but did not report that fact to her, and the suit is to recover the difference. The second and third causes of action are for small items of interest growing out of the alleged agency. In the fourth the plaintiff seeks damages for an alleged slander, and in the fifth she seeks damages for an alleged assault.

Defendant filed a motion to require plaintiff to make her petition more definite and certain in some particulars and to strike out specific language as stating conclusions or being redundant. This motion was sustained. Plaintiff complains of that ruling. There is no merit in this complaint, for three reasons: (1) The ruling of the court is not an appealable order (R. S. 60-3303; Whitlaw v. Insurance Co., 86 Kan. 826, 122 P. 1039); (2) it was made more than two years before the appeal was taken (R. S. 60-3309); and (3) plaintiff complied with the order by filing an amended petition, to which a similar motion was directed, which was overruled.

Defendant answered at length, denying all the allegations of plaintiff's petition. Plaintiff filed a motion to strike out portions of this answer as redundant and stating conclusions, and to require it to be made more definite and certain in some particulars. The court sustained this in part and overruled it in part, and plaintiff complains because it was not sustained in its entirety. This ruling is not subject to review, for two reasons: (1) Because it is not an appealable order, and (2) because it was made more than a year before the appeal was taken. Defendant filed an amended answer complying with the order of the court. Among other things, answering plaintiff's first cause of action, defendant alleged that his appointment as agent for plaintiff was in writing, and set out a copy of it, which provides in substance, among other things, that defendant should rent the farms for $ 450 each per year net to plaintiff, and that he should have as his commission any sum for which he could rent the farms in addition to that; that he did rent the farms for $ 640 each, with an agreement that the tenants were to be credited for certain work done upon the premises for the benefit of plaintiff, and that he accounted to plaintiff in accordance with the instrument by which he was appointed such agent.

In her reply plaintiff admitted that she signed the written instrument set up in defendant's answer, but sought to avoid its effect by allegations concerning the circumstances of its execution. The...