Hines v. Brothers
Decision Date | 07 February 1925 |
Docket Number | 24,927 |
Citation | 232 P. 1050,117 Kan. 589 |
Parties | JONAH HINES, Appellee, v. ROBERTS BROTHERS, a Copartnership, etc., Appellants |
Court | Kansas Supreme Court |
Decided January, 1925
Appeal from Morton district court; CHARLES E. VANCE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. DAMAGES--Breach of Contract--Special Questions Relating to Issues Not Pleaded Properly Refused. In an action to recover damages for failing to perform a contract, it is not error to refuse to submit to a jury a requested special question which asks for an answer concerning either payment, or compromise and settlement, or accord and satisfaction of the claim sued on, where neither of those defenses has been pleaded.
2. SAME--Oral Promise by Creditor to Accept Property of Debtor in Trust Was Enforceable. A promise to a debtor by his creditor, who accepts in trust property from the debtor to be used in paying debts of the debtor to the creditor and to others, is enforceable at the suit of the debtor against the creditor and is not within the statute of frauds.
3. SAME--Evidence--An Unsigned Written Instrument Properly Admitted. It is not error to submit in evidence an unsigned written instrument, nor to permit that instrument to be taken to the jury room, where there is evidence which tends to show that the instrument contains the terms of an oral contract which is the subject of the action.
4. SAME--Competent Evidence to Show Depreciation in Value of a Restaurant Business. Evidence to show the depreciation in the value of a restaurant business occasioned by its standing idle for a period of time includes the damages sustained by injury to the good will of that business.
G. H Terrill, of Elkhart, and J. W. Davis, of Greensburg, for the appellants.
G. L. Light, and F. O. Rindom, both of Liberal, for the appellee.
OPINION
The defendants appeal from a judgment against them for damages for the violation of an oral contract entered into between them and the plaintiff.
The plaintiff ran a restaurant in Elkhart, became financially involved, and determined to quit the business. The defendants were his principal creditors. He alleged, and there was evidence which tended to prove, that he entered into an oral contract with them by which he turned his business over to them to be operated by them, they to pay the running expenses out of the proceeds of the business and apply the remainder in payment of the debts of the plaintiff, after which the business or the proceeds of a sale thereof was to be returned to the plaintiff; that defendants took charge of the business, operated the same for ten days, then brought an action to recover from the plaintiff the amount of the indebtedness due them, and caused a writ of attachment to be issued and levied on the stock of goods, furniture and fixtures in the restaurant; that sale under the attachment was enjoined by the plaintiff; that the defendants refused to carry out the contract, and that the plaintiff was damaged thereby. The answer was a general denial of the allegations of the petition. No affirmative defense was pleaded.
The court submitted to the jury special questions which were answered as follows:
On the statement of the case to the jury the defendants, as a matter of defense, set up a settlement with the plaintiff of all matters in dispute between them. Evidence was introduced tending to prove such a settlement. Instructions requested by the defendants were refused, but no instruction was asked concerning the effect of a settlement between the plaintiff and the defendants.
The matter embraced in the first question requested by the defendants was eliminated by the instructions to the jury. The matters embraced in the second and third questions requested were submitted by the court and answered by the jury. The fifth question requested might have been submitted, but the failure to submit it is not sufficient to warrant reversal or modification of the judgment. This leaves the fourth question for discussion. It embodied a material proposition if a settlement had been pleaded in the answer. Such a settlement had been stated to the jury, and evidence had been introduced thereon. No instruction was requested on that matter. The court may have concluded that because a settlement had not been pleaded as a defense, he would not submit the question to the jury, neither in the instructions nor in the special questions. There had been no request to amend the answer.
In 12 C. J. 362 the following language is used:
This question has been settled by this court in Roniger v. McIntosh, 91 Kan. 368, 137 P. 792, where the court said:
In the same case, on page 371, the court said:
If it be contended that this matter constituted an accord and satisfaction, the rule still prevails that it must be pleaded. 1 Encyc. Pl. & Pr. 74 says:
"In those states which have adopted the code system of pleading accord and satisfaction must in all cases be pleaded specially."
We quote further from 1 R. C. L. 202, as follows:
"As a general rule, the defense of accord and satisfaction must be specially pleaded; it cannot be set up under the general issue or plea of not guilty."
If a request had been made to amend the answer, even at the close of the introduction of the evidence, the question presented by the defendants would be difficult of solution, except by reversing the judgment, but that request was not made. If the defendants chose not to ask an amendment of the answer, the judgment should not be reversed by now considering the answer as amended.
"You are instructed that in order to render the defendants liable to plaintiff upon any promise to pay debts owing by the plaintiff, such promise must have been made in...
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