The Hunter Milling Company v. Allen
| Decision Date | 07 June 1902 |
| Docket Number | 12,676 |
| Citation | 65 Kan. 158,69 P. 159 |
| Parties | THE HUNTER MILLING COMPANY v. JACOB H. ALLEN |
| Court | Kansas Supreme Court |
Decided January, 1902.
Error from Sumner district court; W. T. MCBRIDE, judge. Opinioniled June 7, 1902. Reversed.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
PRACTICE DISTRICT COURT -- Statement of Case by Counsel -- Departure from Petition. Where, in an action brought to recover the value of wheat alleged to have been converted by the defendant, the counsel for plaintiff in his oral statement to the court and jury, recites a condition of facts upon which he would be entitled to recover only for storage charges paid by him on said wheat under a mistake of facts induced by the fraud of defendant, and such statement is a departure from the facts alleged in his petition, it is prejudicial error for the court to overrule proper and timely objections made thereto and proceed to try the cause without either having the petition amended or striking out one or the other of such causes of action.
C. E. Elliott, and James Lawrence, for plaintiff in error.
W. W. Schwinn, for defendant in error.
OPINION
The material allegations of the petition are: That the defendant, the Hunter Milling Company, in the years 1893, 1894, 1895, 1896, and 1897, and at the time this action was commenced, was a corporation operating an elevator in the city of Wellington; that during that time, and prior to 1897, the plaintiff deposited in said elevator a large quantity of hard wheat, under an agreement that the company would keep it on deposit in separate or private bins and return the identical wheat upon demand; that prior to the 25th day of June, 1897, the defendant had returned to plaintiff, or had accounted to him, for all of said wheat so deposited, except 3407 bushels and 50 pounds, which was worth 64 cents per bushel, or $ 1077.85; that plaintiff demanded a return thereof, or its value, which was refused. The petition also alleges that, upon the deposit of the wheat, the defendant mixed it with other wheat belonging to himself and others and converted it to his own use, without the knowledge or consent of plaintiff; and that such fact was unknown to plaintiff until within sixty days prior to the time of filing his petition.
To this petition the defendant filed a general denial. The cause was tried by a jury. Counsel for plaintiff in the opening statement of his cause stated that the defendant agreed to keep said wheat in separate bins and deliver the identical wheat on demand, but that immediately upon such deposit the defendant had converted it. He also stated facts which admitted that defendant had accounted for and plaintiff had received pay for all wheat so deposited; that a settlement was had and storage charges allowed by the plaintiff, with the understanding on his part that his wheat had been actually kept on hand during all the time for which he paid storage; that some time prior to the beginning of this action he discovered that defendant, immediately upon the deposit, had converted the wheat, and was therefore not entitled to the storage paid by plaintiff; and that the action was brought to recover the storage thus wrongfully charged and mistakenly paid and for the value of the wheat remaining in the elevator.
Upon this statement having been made, the defendant requested the court to render judgment in favor of it, because the statement did not conform to the facts pleaded in the petition and the cause of action stated to the jury was not the cause of action stated in the petition; that the cause of action stated in the petition was for the conversion of the wheat, while that stated to the jury was one to recover for storage charges paid through mistake or fraud. This request was overruled, and excepted to by the defendant. The defendant then requested the court to withdraw the cause from the jury, for the reason that under the statement the plaintiff is seeking to recover upon one cause of action alleged in his petition, and an entirely different one in his statement to the jury. This request was overruled, to which the defendant excepted.
At the trial, the jury found for the plaintiff in the sum of $ 2230.70, for which amount judgment was rendered, and from which judgment ...
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