Delaney v. Great Bend Implement Co.

Citations

• 79 Kan. 126
• 98 P. 781
• 1908 Kan. LEXIS 200

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition'—Construction—Action ex Contractu or ex Delicto. In determining whether a petition states a cause of action ex contractu or ex delicto it must be considered in its entirety, but with special reference to its prominent and leading allegations. Where the averments make it doubtful whether the action is on contract or in tort every intendment must be made in favor of construing it as an action on contract. The case of Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 280, followed.</p> <p>2. Sales — Breach of Warranty — Damages — Non-negotiable Note. Where promissory notes given in payment of property sold under a contract- of warranty have passed out of the control of the payee the maker may elect to treat them as valid obligations, notwithstanding they are non-negotiable, and his failure to interpose his defense in a suit brought against him by the holder of the notes will not prevent him from maintaining an action against the payee to recover damages for breach of warranty.</p>