Drovers' Live-stock Commission Co. v. Charles Wolff Packing Co.

Citations

• 74 Kan. 330
• 86 P. 128

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Issue Not Pleaded but Acquiesced In. Where with the acquiescence of the litigants a case is tried upon the assumption that a certain question of fact is involved, an inquiry in a reviewing court into errors assigned with regard to such question cannot be avoided by the prevailing party merely.by a showing that it was not within the issues raised by the pleadings.</p> <p>2. Guaranty — Delay in Giving Notice of Intention to Repudiate the Contract — Estoppel. Where a packing company purchases and uses a part of a herd of mortgaged cattle without payment therefor reaching the mortgagee, and upon a demand for an accounting, being given the privilege of handling and marketing the remainder of the cattle, guarantees the payment of any deficiency in the mortgage debt, and the company upon being sued on the guaranty defends upon the ground that it had been induced to make it by a false representation of the number of cattle on hand and had rightfully repudiated it, a showing that for thirty-nine days after discovering the real facts the company failed to notify the mortgagee of its purpose to deny liability is fatal to such defense, where no excuse is shown for such delay and where during that period the cattle are disposed of by a trustee in bankruptcy of the mortgagor.</p> <p>3. -Defense of Fraud — Duty of Guarantor. In such a case, in order for the packing company to avail itself of such defense, it must either offer to pay the mortgagee for the cattle it had used prior to the execution of the contract of guaranty or show grounds relieving it from liability on that account.</p>