Grentner v. Fehrenschield

• Decision Date: 05 April 1902
• Docket Number: 12,551
• Citation: 64 Kan. 764,68 P. 619
• Parties: JOHN H. GRENTNER et al. v. PETER FEHRENSCHIELD
• Court: Kansas Supreme Court

68 P. 619

64 Kan. 764

JOHN H. GRENTNER et al. v. PETER FEHRENSCHIELD

No. 12,551

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Error from Geary district court; O. L. MOORE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT -- Confusion of Theories in Pleading. The plaintiff must frame his petition upon a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient.

2. PRACTICE, DISTRICT COURT -- Petition Insufficient. The averments of the petition herein examined, and it is held, that there is a confusion of theories, and also, that there are insufficient facts alleged to sustain any theory.

3. PRACTICE, DISTRICT COURT -- Fraud -- Necessary Allegations. Where plaintiff seeks to recover because of the fraud of the defendants based upon misrepresentations, it is incumbent upon him to allege and prove what misrepresentations were made; that they were false; that he believed them to be true, and that he relied and acted upon them.

Roark & Roark, for plaintiffs in error.

J. R. McClure, and W. W. & W. F. Guthrie, for defendant in error.

JOHNSTON, J. CUNNINGHAM, POLLOCK, JJ., concurring.

OPINION

JOHNSTON, J.:

On or before October 27, 1898, Arnold Gruntges and Peter Fehrenschield were the equal owners of real estate in Atchison known as the Pardee block. Both of them desired to exchange it for other property, and through the assistance of John H. Grentner, a nephew of Gruntges, an opportunity to exchange it for real estate in Geary county, owned by Mrs. Blakely, was found. She had a residence in Junction City, an unencumbered tract of 280 acres, and another tract of 320 acres of land, which was mortgaged for $ 900. The trade was negotiated by Gruntges and Grentner, and Fehrenschield, who desired unencumbered land, agreed to take the tract of 280 acres and a note of Grentner for $ 200 for his half-interest in the Pardee block, and Gruntges took the residence and the encumbered land for his interest. The property received by Gruntges was transferred to Grentner, the nephew of Gruntges, in consideration of the maintenance and care of Gruntges during the remainder of his life; and later a sale and conveyance of the mortgaged tract of 320 acres was made by Grentner to one Louis Hauserman, who had no knowledge of the relation between the parties to the transaction, or of the wrongs alleged to have been committed upon Fehrenschield.

Some time after the transaction was closed and the mortgaged land transferred, Fehrenschield brought this action, alleging that Gruntges and Grentner had conspired together to misrepresent the facts to him and to defraud him; that he was of weak mind and easily deceived, and that he did not receive a fair share of the property received in exchange for the Pardee block, nor a fair consideration for his half interest in that block. He asked that he be declared to be the equal, undivided owner of all the lands conveyed by Mrs. Blakely; that Grentner and Gruntges be held to be trustees for his benefit of the undivided half-interest in the lands conveyed to them, and that partition be made of such property, and that he recover from Grentner and Gruntges one-half the value of so much of said property as had been conveyed away by them. Trial was had by the court without a jury, and judgment was given in favor of Fehrenschield, the court finding that the Pardee block, jointly owned by the parties, was exchanged on the basis of a valuation exceeding $ 8000, and partition was made confirming title to the 280-acre tract to Fehrenschield, and giving the mortgaged tract of 320 acres to Gruntges, and providing that the residence property might be retained by Grentner and Gruntges if they paid into court, for the benefit of plaintiff, $ 2500, and, if it was not paid within a stated time, that the property should be sold and one-half the proceeds of the sale paid to Fehrenschield.

The defendants below asked the court to require the plaintiff to state more definitely the acts of fraud alleged to have been practiced upon the plaintiff by each of the defendants as well as the false representations said to have been made to plaintiff by each of them. They also demurred to the petition because of insufficient facts. There is cause to complain of the indefiniteness and insufficiency of the petition. A plaintiff must frame his pleadings upon a distinct theory and cannot, against the objection of defendant, obtain relief upon a theory essentially different from the one alleged. In the Western Union Telegraph Company v. Reed, 96 Ind. 195, it was said that "in order to bring the parties to an issue, it is necessary to require them to make their pleadings conform to some definite theory, and to be sufficient upon that theory." If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine...