Hunter Milling Company v. Allen

• Decision Date: 08 December 1906
• Docket Number: 14,701,14,387
• Citation: 88 P. 252,74 Kan. 679
• Parties: THE HUNTER MILLING COMPANY v. JACOB H. ALLEN. THE HUNTER MILLING COMPANY v. JACOB H. ALLEN
• Court: Kansas Supreme Court

88 P. 252

74 Kan. 679

THE HUNTER MILLING COMPANY v. JACOB H. ALLEN.

THE HUNTER MILLING COMPANY v. JACOB H. ALLEN

Nos. 14,387, 14,701

Supreme Court of Kansas

December 8, 1906

Decided July, 1906.

Errors from Sumner district court; CARROLL L. SWARTS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

REPLY -- New Matter -- Departure. New matter in the reply which the plaintiff is forced to plead in order to meet the allegations of the answer will not constitute departure if it does not contradict the facts stated in the petition and if it is not adopted as a new basis for relief in place of the cause of action presented by the petition.

James Lawrence, and Waggener, Doster & Orr, for plaintiff in error.

W. T McBride, and W. W. Schwinn, for defendant in error.

BURCH J. JOHNSTON, C. J., MASON, SMITH, JJ., concurring.

OPINION

BURCH, J.:

The principal question in this case is whether the reply departs from the petition. The petition charged that the plaintiff deposited hard and soft wheat in the defendant's elevator, there to be stored and kept in separate bins and returned on demand; that immediately upon receiving it, however, the defendant mixed the wheat with other grain, removed it from the elevator to defendant's mill, there manufactured it into flour, and then sold the flour as its own. Part of the deposit was accounted for. Unavailing demand was made for the remainder, and judgment was asked for its value, less a credit of $ 328.65, made on June 25, 1897.

The defendant answered by a general denial. When the case first came on for trial the plaintiff's attorney made a statement to the jury showing that the plaintiff had settled with the defendant for the wheat under the belief that it had been stored according to contract, and had allowed the defendant storage charges for the time he supposed the wheat had been on deposit; but that he had discovered the defendant had not kept the wheat in store at all, had converted it to its own use, and was not entitled to the storage charges which had been paid; and hence that the action was brought to recover the storage charges wrongfully charged and mistakenly paid. The case was tried on the theory of the statement instead of the theory of the petition, and verdict and judgment went for the plaintiff.

In a proceeding in error in this court it was properly held that the petition stated a cause of action for the conversion of wheat; that the statement of counsel presented a cause of action for the recovery of money paid by mistake as storage charges upon wheat which had not been kept in store; and hence that a departure clearly appeared. (Hunter v. Allen, 65 Kan. 158, 69 P. 159.)

When the cause was returned to the district court the petition was not amended. The defendant answered that on June 25, 1897, it purchased all of the plaintiff's hard wheat, and had a settlement with him for storage charges upon both the hard and soft wheat; that the amount of the storage charges was deducted from the price of the wheat and a check for $ 328.65 was given in payment of the balance; that the soft wheat was on hand when demand for it was made and that defendant stood ready to deliver on payment of storage charges accruing subsequent to the settlement. The plaintiff replied denying the truth of the answer, admitting that upon June 25, 1897, he did agree to sell the hard wheat to the defendant for a stipulated price, and received $ 328.65 in part payment, and stating that he did not collect the full price and value of all the wheat sold the defendant on the day named because of his agreement to pay storage. But the reply further charged that "on said 25th day of June, 1897, the defendant represented to the plaintiff that it had kept all the wheat deposited with it by the plaintiff in accordance with said contract, and that by keeping said wheat had earned a sum of money equal to the full value of all the wheat sold to it by the plaintiff except the sum of $ 328.65, which representations the plaintiff then believed, but has since, and only a few days before this action was begun, ascertained, and alleges the fact to be that the defendant did not keep the plaintiff's wheat at all, but used it for making flour, as it was deposited with it, as alleged in his petition, and had not earned any sum whatever for storing said wheat, and had no claim against the plaintiff for storing his wheat or upon any account at the time it bought his said hard wheat."

The defendant refuses to see anything in this reply but the admission of a sale, failure to obtain the full amount of the price because of fraud, and a demand for the unpaid balance. The court reads it otherwise. The whole transaction of June 25, 1897, is avoided by the allegations quoted. The reply shows that the plaintiff acted upon the belief that his wheat had been kept in identifiable form, segregated from other grain in the defendant's elevator, when in fact it had been ground into flour. This belief was induced by the defendant's representations that the storage contract had been kept. These representations were false and fraudulent. The sale was therefore of no legal consequence because induced by fraud, and because the fundamental element of a sale--a thing in existence to be sold--was wanting. The settlement of accounts after the supposed sale was vitiated by the same fraud. There was in truth no price to be paid and there were no storage charges to be credited. The conversion of plaintiff's wheat is distinctly reasserted with a reference to the petition for the full facts, and no relief is asked other or different from that prayed for in the petition. Fairly considered, therefore, the import of the reply is that the petition was not abandoned, but that all the facts relating to the dealings between the parties were disclosed for the fortification of the petition and the demolition of the answer.

The various statements in the reply by way of admission that the transaction of June 25 was a sale go far toward placing the plaintiff in the attitude of merely seeking the balance of the price, but since in the same connection he denied the answer, detailed facts which made a sale impossible for lack of an indispensable element, made the settlement on the theory of a sale voidable for fraud, returned to the petition for the statement of his claim, and asked for no relief on the basis of a sale, it cannot be said that he shifted his ground.

The case of Neve v. Allen, 55 Kan. 638, 41 P. 966, goes part of the way toward a solution of the problem. There the plaintiff averred that he was the owner in fee simple and in the possession of certain land, the title to which he prayed might be quieted. The answer stated that the defendant was the owner in fee simple of an undivided one-third. The reply conceded that the defendant was the holder of the naked legal title to the share claimed, but advanced facts showing the equitable title to be in the plaintiff and that it would be unjust to allow the defendant to insist upon his. legal title. The court said:

"We do not think, however, that this concession changes substantially the claim made in the petition, which need not have contained anything about the nature of the title, whether legal or equitable. The replies met fully the averments contained in the answers, substantially admitting their truth as to the legal title, but stating facts showing that it would be inequitable for the defendants to set up such naked legal title to defeat his full equitable claim to the whole premises." (Page 643.)

So here the plaintiff was not required to set out in the petition the facts relating to the credit of $ 328.65 allowed as of June 25, 1897. The reply met fully the averments of the answer by admitting what occurred on the day named but stating facts showing the injustice of allowing the transaction to stand as an adjustment of the rights of the parties.

In the case of Cox v. Hayes, 18 Ind.App. 220, 47 N.E. 844, the defendant sought to force upon the plaintiff an unwarranted interpretation of his reply. The plaintiff sued upon an account. The defendant answered that he had paid the account by a check which was accepted by the bank upon which it was drawn and credited to plaintiff on his pass-book and on the books of the bank. The reply was that the check was accepted and credited by the bank under an agreement that plaintiff would on the next day deposit cash to make good the credit; that he replaced the check with cash at the bank, took the check to the defendant and demanded that he take it up with cash, but that the defendant refused to do so. The court held that the plaintiff did not abandon the cause of action stated in the petition and set up another on the check, but merely showed by the reply that the payment charged in the answer was not in fact a satisfaction of the account.

So here the plaintiff cannot be held to say that he sues for a balance due on a sale of wheat when the reply distinctly asserts that the wheat was converted and ground into flour long before he attempted to sell it, and that the settlement made under the belief that the wheat was in existence and liable for storage was the product of the defendant's unadulterated fraud. The transaction of June 25, 1897, was repudiated by the petition, which grounded the right of recovery upon the original conversion of the wheat, and because the answer compelled the plaintiff to set up all the facts it cannot with justice be claimed the petition was abandoned.

An analogous situation is disclosed in the case of Lamme v Dodson, 4 Mont. 560, 2 P. 298. The complaint in an action of ejectment stated a good cause of action by pleading the legal title. The answer denied the legal title and set up the statute of...