Hornick v. Union Pacific Railroad

Citations

• 85 Kan. 568
• 118 P. 60
• 1911 Kan. LEXIS 116

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Fraudulently Procured, No Reformation Asked, True Contract Enforced. In his petition plaintiff set forth a written contract as he claimed it was made and alleged that it was not in his possession and he was unable to give a copy of it. In its answer defendant set out a copy of the written contract, which differed materially from the one set out by the plaintiff. In reply plaintiff alleged that the writing copied in the answer was fraudulently procured and did not contain all the agreements of the parties, and he then stated the terms of the contract as actually made and asked a recovery under it. Held, that the fact that formal reformation was not asked did not prevent the court from determining whether the contract signed contained all the agreements of the parties nor from enforcing the contract which was actually made.</p> <p>2. Pleadings — Verification by Attorney of Corporation. Under section 112 of the civil code a verification of a pleading may be made by an officer, agent or attorney of a corporation without setting forth why it was not made by the corporation itself or otherwise complying with the requirements of section. 116 of the code.</p> <p>3. - Verification, When too Late to Challenge. A party who challenges the form or sufficiency of a verified pleading should attack it by motion before the introduction of the evidence is begun, and an objection made after the introduction of the evidence is ordinarily too late to be available.</p> <p>4. Agency — Evidence Required When Authority is Denied Under Oath. Where the authority of a claim agent of a railroad company to make a contract embracing unusual stipulations is denied under oath it devolves on the opposing party to prove that the agent had such authority, and neither evidence of the statements of the agent nor the fact that he made that particular contract is sufficient to establish his authority.</p> <p>5. -- Insufficient Evidence to Show Authority. Pro