Crowther v. Elliott

1. Practice — Exceptions—Waiver. Alleged errors in the progress o£ as. trial not excepted to, are deemed to be waived, and will not be considered in this court. 2. Pleading — Petition. If the petition contains the averments necessary to inform the defendant of the claim against him and the relief' demanded, although stated in an awkward and unskillful manner, it:, must be held to be good on demurrer.

Error from Riley District Court. Crowther sued Elliott, and alleged in his petition that" on the 27th of June, 1868, the parties entered into a written contract, in and by which plaintiff agreed to sell to defendant all plaintiff’s interest in the “ Kansas Radical,r newspaper establishment, for $100, payment to be made and possession given on the 8th of August following y. also, a stock of paper and ink, for $64.71, to be paid' at same time; that until said August 8th, plaintiff should continue in charge of said newspaper, and give it bis personal management and attention, for which services Elliott was to pay plaintiff $25 per week. Plaintiff alleged that he had “ performed his part of the contract,” and had remained in charge of said establishment as business manager, etc., until Sept. 12th, 1868, and he demanded judgment for said sums, and interest, and $25 per week ■for his services from June 27th to Sept. 12th. Defendant answered, making a general denial. The case was tried* at the June Term, 1869, before a jury, and after the testimony was all in, defendant, on leave, filed a demurrer-to the petition, alleging that said petition did not state facts sufficient to constitute a cause of action. The-court sustained the demurrer, and gave judgment for defendant for costs. The plaintiff excepted, and now brings-the case here by petition in error. 1. The record shows that this was a trial by jury, the -evidence all in, and all parties rested. Afterwards the defendant filed a demurrer which the court sustained. A ■demurrer cannot be filed at such a stage of the case. 2 Kas., 70., 347. The defendant had rested; there was then no necessity for further proceedings on the part of counsel or court; the case was with the jur; ,. 275, code, prescribes the order of the trial. 2. The petition states a cause of action. The contract was made a part of it. 1 Kas., 102, 116; 4 Kas., 211. 3. If the petition was indefinite and uncertain, defendant waived that by going to trial. 3 Kas., 372, 389. 1. Did the court below err in allowing the defendant to interpose his demurrer at the time and under the circumstances as set forth in the record ? There are two grounds of demurrer that are ‘ never waived: 1st, the jurisdiction of the court; 2d, that the petition does not state facts sufficient to constitute a cause of action. § 91, civil code. And in this case the objection was not made to hearing the demurrer, but only to the decision upon it. 2. Did the court err in sustaining the demurrer? The petition sets up a written contract, and alleges that the ■same was continued (without stating how or by whom) until the 12th of September, and that plaintiff performed ■all the conditions of said contract, and then claims that defendant is indebted to plaintiff in the several sums as mentioned; but there is no allegation)that plaintiff’s interest in the newspaper, or the stock of paper, ink, etc., was ever turned over by plaintiff to or received by defendant. Certainly, then, as to those two items thei e is not “ facts stated sufficient to constitute a cause of action.”' There is no allegation in the petition that plaintiff “ continued in the charge of the business,” or performed any service whatever, except the general allegation that “ he duly performed all the conditions of said contract on his part.” These allegations do not constitute a cause of action. 2. The action of the court below was equivalent to an instruction to the jury to return a verdict for the defendant, for want of proof to support a cause of action; and the plaintiff in error has failed to preserve the evidence given in the case, and from which this court might have determined whether the court below was-right or wrong in its judgment.