Delphos Milling Co. v. Jackson

Citations

• 111 Kan. 388
• 207 P. 751
• 1922 Kan. LEXIS 255

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Action on Account — Pleadings—Verification of Answer — Reply. The civil code (§ 104) authorizes the filing of a reply when the answer contains new matter. In an action on a verified account an answer was filed consisting of a general denial and a plea of payment, to which plaintiff filed a reply consisting of a general denial. Pd eld, that the reply traversed only the plea of payment.</p> <p>-2. Same — No Waiver of Verification of Answer — Burden of Proof. On the trial plaintiff insisted that the burden was upon the defendant. The court held that plaintiff must show that it was a corporation. Plaintiff offered evidence on that issue alone and rested. Held, that by filing a reply traversing only the plea of payment and by offering evidence upon the one issue as required by the court, plaintiff did not waive verification of the answer.</p> <p>3. Same — Sufficient Verification of Petition and Account Sued Upon. The petition alleged that plaintiff purchased merchandise at certain times and at prices set forth and alleged in plaintiff’s exhibit A, which was part of the petition, and which consisted of a statement of the account verified by the president of the plaintiff company, stating that he had read the petition and the statement of the account, and that “all statements and items therein are just, true and correct.” Held, that while the language of the petition was not aptly chosen, nevertheless, in determining its effect the allegations must be liberally construed with a view to substantial justice between the parties (Civ. Code, § 117), and that so construed the petition and the correctness of the account are sufficiently verified.</p>