Cleveland v. Mills

Citations

• 92 Kan. 865
• 141 P. 879
• 1914 Kan. LEXIS 334

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Written Contract — Unverified Denial — Issue Raised. Where a plaintiff sets forth a written contract in his petition and seeks a remedy only under the provisions thereof, and the defendant pleads only by an unverified denial, the only proper issue is whether the plaintiff -has so performed the conditions of the written contract as to entitle him to recover.</p> <p>2. Same — Departure from Pleadings — Not. Reversible Error. Where, however, on the trial of the action the defendant, without any proper objection by the plaintiff, produces evidence that immediately after the execution of the written contract the parties made an oral agreement substantially different from: the written contract, and it appears that in conducting the business between them both parties ignored the written contract and settled many different items more nearly in accordance with the oral than with the written contract, and where the court makes findings and renders judgment in substantial accordance with the evidence, held, that the judgment will not be reversed by reason of the departure from the issues as made by the pleadings.</p>