Fritts v. Reidel

Citations

• 101 Kan. 68
• 165 P. 671
• 1917 Kan. LEXIS 18

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Motion for, Sustained — Amended Answer Allowed — Judgment Set Aside. Where a defendant is permitted to file an amended answer after his adversary’s motion for judgment has been sustained, the granting of such permission is, in effect, an informal setting aside of the order sustaining the motion for judgment.</p> <p>2. Redelivery Bond — Fraud—Sufficient Pleading. An answer pleading a defense to an action on a redelivery bond examined, and held sufficient against a motion for judgment.</p> <p>3. Redelivery Bond — Fraudulent Representations — Trial — Insufficient Instructions. Where the terms of a written redelivery bond are simple and easily understood, and the defense sought to be made against it is one of fraud and misrepresentation in that the bondsman could not read, and that he had signed it in reliance on the explanation of its terms made to him by the agent of the party seeking to enforce it, and that the bond contained terms not explained.to him, the trial court should instruct the jury that the evidence to maintain such a defense should be clear, decided and satisfactory (Bank v. Reid, 86 Kan. 245, 120 Pac. 339), and the ordinary stereotyped instruction that a “preponderance of the evidence” will defeat a recovery is insufficient where a more precise statement of the law of evidence relating to a defense based on allegations of fraud and misrepresentation to defeat a written instrument is requested.</p>