Snyder v. Wheeler

[512] The opinion of the court was delivered by Benson, J.: The defendant contends that there was a departure in the reply; that the allegations concerning the telephone right and the rental of the premises, if pleaded at all, should have been set out in a supplemental petition, and can not be considered as grounds of relief; that this was an action to cancel a contract because the alleged agent who signed it was not authorized to do so, and the plaintiff could not set up other grounds in his reply. It is true that the plaintiff in his petition relied upon the fact that he had not authorized the execution of the agreement. To this the defendant pleaded an avoidance, viz., that the contract was ratified by the plaintiff after its execution by such agent and had been fully performed by the defendant. ■ The defendant based a counterclaim upon the contract so ratified, alleged that he had received the deed, and prayed for possession. To this the plaintiff replied by a denial, and by pleading acts of ownership by the defendant over the Gray county land by agreements inconsistent with his counterclaim, whereby the land had become encumbered. These agreements related to the telephone rights and the tenancy, and were entered into by the defendant after he had been informed that the plaintiff considered that he was no longer bound by the agreement and after the petition had been filed. They did not give the plaintiff new causes of action, but were pleaded as defenses to, or in avoidance of, the claim that the contract was in force. They were not inconsistent with the plaintiff’s cause of action. There was no-motion to Strike this new matter from the reply. The defendant demurred to it on the ground that it did not state a cause of action. It could not be claimed that it did. It was defensive, and the demurrer, was properly' overruled. (Civ. Code, § 102; Gen. Stat. 1901, § 4536.) All necessary facts were pleaded, and the case was fully tried upon the merits and without confusion, and if it [513] should be conceded that there was a departure in the reply, as claimed, still the substantial rights of the defendant were not affected. (Rossiter v. Merriman, 80 Kan. 739.) Another contention of the defendant is that the finding of the absence of title or defective title to the Gray county land is not supported by the evidence; that, the existence of outstanding titles to the right of way and school site and the highway upon the land being known to the plaintiff, they are not defects or encumbrances of which he can complain, and that the existence of a mortgage greater than the amount named is unavailing because the plaintiff was to pay $1750 in the exchange, and might have deducted the excess out of this payment. Conceding this to be the correct view, it does not follow, as a matter of course, that the contract should be enforced and the defendant given possession of the Butler county land. (Fowler v. Marshall, 29 Kan. 665.) The court found, upon conflicting evidence, that after the contract had been ratified and deposited in the bank, some questions having arisen about the title, the parties agreed to meet and consider the matter. The defendant twice neglected to keep appointments for this purpose, and, when he learned that the plaintiff had given up the contract and departed for his home, the defendant stated that it made no difference to him whether the trade was made or not. Following this declaration and in harmony with it were the acts of the defendant in returning the deed to the bank, granting the telephone privileges, and arranging with the tenant to carry on the farm. It is said that the telephone agreement conferred no right that the telephone company did not already have, since it might use the highway without the consent of the owner. But this agreement also gave the right to trim the trees, and to attach wires thereto, whether on the highway or not does not appear; it also gave the right to erect and set brace poles and anchors and attach guy wires thereto. It may be necessary that [514] 'these fixtures be placed outside of the highway, and, if so, they would encumber the land. Whether the telephone contract should be considered as a material encumbrance or not, its execution evinced a purpose by the defendant to treat the land as his own, and he dealt with it accordingly. This is inconsistent with his claim that the contract of exchange was in force, and is some evidence that he considered it rescinded. The evidence, construed, as it must be, in the light most favorable to the plaintiff, supports the findings, and it can not be held that the findings do not warrant the conclusions. The judgment is affirmed.