Dixon v. Caster

The opinion of the court was delivered by Burch, J. : The reply was not vulnerable to either the motion or demurrer. .The copies of the pleadings, findings and judgment in the first suit disclosed precisely what facts were there litigated, how they were adjudicated, and against whom the decision ran. Any statement the pleader might have made could not illumine them or add anything to the information they imparted. Both the motion and the demurrer were properly overruled. The misdescription of the real estate did not destroy the sameness of the property or of the lease involved in the two suits. The subject and the evidence of the dealings between the parties remained constant. The testimony relating to the mistake simply conduced to their identity. Nor was it necessary to reform the lease, since by the aid of extrinsic testimony the prop [745] erty was identifiable from its designation as a laundry. [Mumper v. Kelley, 43 Kan. 256, 259, 23 Pac. 558.) The chief contention of plaintiff in error is that a part of the personal property actually involved in the action was the substituted engine and boiler, which were not described in the lease, and which, if possessed at all were held by virtue of a parol agreement, unenforceable under the statute of frauds. Many pages of the brief are devoted to a discussion of the right of plaintiff to recover on the theory that the action was necessarily upon the status created by the verbal agreement. But the plaintiff did not sue on any parol contract. He based his action upon the written lease, and the defendant cannot create for the plaintiff a new cause of action, read it into the petition, cudgel it to death, and then claim he has destroyed the plaintiff’s cause. The utmost weight, therefore, which can be given to the facts relating to the substitution of personal property is that they establish a contract in parol which supersedes the writing, and defeats it as a basis of recovery. The findings of fact quoted were based upon, and wholly within, the issues in the first case, and from them it is obvious that the effect of the change in engines and boilers was the moot point in the former suit. In that action plaintiff in error asserted that he was relieved of all liability whatever to his lessor ; now he claims that he is liable only in another way. He seeks merely to deduce an additional consequence from the same state of facts. His effort to do so is belated. He should have drawn all his conclusions in the first litigation, and, having failed to do so, the whole matter is res judicata. [McEntire v. Williamson, 63 Kan. 275, 65 Pac. 244, and cases cited ; Boyd v. Huffaker, 40 id. 634, 20 Pac. 459, and cases cited.) There was no error, therefore, in either the admis [746] sion or exclusion of evidence, or in overruling the motion for a new trial based upon the action of the court in respect to these matters. Other questions presented by counsel for plaintiff in error have been examined, and, no error appearing in the record, the judgment of the district court is affirmed. All the Justices concurring.