Atkinson v. Kirkpatrick

Citations

• 90 Kan. 515
• 135 P. 579
• 1913 Kan. LEXIS 257

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Supplemental Answer — Matters Arising Subsequent to Filing Original Answer May be Pleaded. It is no objection to a supplemental answer and cross-petition that it alleges matters which have- arisen or have become known subsequent to the filing of the original answer, provided the facts alleged be material and go to divest the plaintiff of the right to maintain the’action.</p> <p>2. -Same. In an action by a landlord to recover rent, defendant filed a supplemental answer setting up a counter claim for damages w-hich arose after the original answer was filed, and which it was alleged resulted from the failure of the landlord to comply with his covenant to repair. Held, that the defense was properly raised by supplemental answer.</p> <p>3. Damages — Which Could Have Been Averted — Not Recoverable. It is a general rule of the law of damages, that notwithstanding the fault of the other party, the one whs is injured in person or property will not be permitted to recover damages which he might have averted by reasonable diligence.</p> <p>4. - Same. A tenant of a store building under lease, by which the landlord covenanted to repair, being sued for rent, set up a counter claim for damages to stock caused by water from a defective down-spout and by leaks in the pipes of a water-closet. The defense to the counter claim was that the loss resulted from the failure of the tenant to take reasonable precautions to protect his stock after he knew of the risk to which it was exposed. Held, error for the court to refuse to instruct the jury that even though the 'landlord had failed to comply with his covenant to repair, the tenant could not remain inactive and allow increased damages to accrue and recover them from the landlord, when at slight expense he could have averted the damages or reduced the amount thereof.</p> <p>5. Lease — Clear and Unambiguous — Not Affected by Usage or Custom. A part of the counter claim set up in the original cross-petit