Frankhouser v. Neally

The opinion of the court was delivered by Horton, C. J.: Upon the trial, plaintiff below offered the deposition of George W. Neally. This was permitted to be read in evidence, over the objection of defendant below. The deposition showed that the witness was a resident of Osage county. There was no showing made that the witness could not be produced upon the trial. The court, therefore, committed error in permitting the deposition to be read in evidence. (C. K. & N. Rly. Co. v. Brown, 44 Kas. 384.) “1. Where a person takes and sells the property of another, the owner may elect to waive the tort and sue upon the implied contract for the value of the same; and whether he has so elected, and the nature of the action brought, are to be determined by the court from the pleadings. “2. In such a case, where the facts alleged indicate a waiver of the tort, and are sufficient to constitute a cause of action on contract, it should be so regarded, although some words of the pleadings are adapted to an allegation in an action ex delicto.” (Smith v. McCarthy, 39 Kas. 308.) As this action was commenced before a justice of the peace upon an implied contract for the value of the corn, and as no answer was filed, or any bill of particulars as a set-off was demanded, and as the pleadings were not amended in the district court, the trial court committed material error in not permitting defendant below to lessen the recovery against him, to show that after the levy on the corn in dispute other persons, with plaintiff’s consent, moved a part of the corn and used or sold it; that plaintiff received pay from parties whose cattle had injured the corn, and used or sold a part of it for his own benefit. The court instructed the jury that the parties had agreed that the only question to be submitted to them for their decision was the amount and value of the corn levied on. The record does not show any agreement to that effect, either oral or written, and error was committed in the [747] instruction. The judgment will be reversed, and the cause remanded for further proceedings. All the Justices concurring.