Gates v. Little Fay Oil Co.

Citations

• 105 Kan. 46
• 181 P. 570
• 1919 Kan. LEXIS 11

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil Well — Action for Price of Drilling — Cross-petition—Demurrer to Evidence Sustained — Leave to Amend Cross-petition Refused— Error. A demurrer to evidence was sustained on the ground that, although it tended to establish a cause of action, it was not consistent with the pleading of the party introducing it, and an application for leave to-amend the pleading to conform to the proof was denied. Held, that the pleading was not explicitly in conflict with the evidence, but was merely ambiguous and indefinite, and that in view of circumstances which are regarded as showing that the opposing party was not taken by surprise, the amendment should have been allowed and the demurrer overruled.</p> <p>2. Same — Pleadings—Defendant Described as Corporation — A Partnership. The fact that a company which is described in the pleadings as a corporation, and is made a party as such, and as to the corporate existence of which no issue is raised, turns out to be a firm, not all of the members of which are made parties, is not a ground of demurrer to the evidence.</p>