Hull v. Prairie Queen Manufacturing Co.

Citations

• 92 Kan. 538
• 141 P. 592
• 1914 Kan. LEXIS 272

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Permissible Recitations in Abstract of Record. It is permissible to recite in an abstract that a motion for a new trial was filed on all the statutory grounds, and also that the special findings did not support the general verdict, instead of setting out the motion itself.</p> <p>2. Pleadings :— Rescission of Contract — Damages — Motion to Elect — Granted—No Error. A petition, if liberally construed, declared upon a rescission of a contract and also for damages for breach thereof. The defendant moved to require the plaintiff to elect whether he sought rescission or damages, which motion was granted, and the plaintiff filed an amended petition praying for rescission, no estoppel so to elect being pleaded or suggested except by an objection to testimony under the amended petition. Held, that the defendant can not be heard to claim that no right so to elect existed.</p> <p>3. Question op Law — Correctly Decided by Jury — No Error. The divisibility of a contract was submitted to the jury, who reached the right conclusion. Held, not materially prejudicial that the court did not declare instead of submitting such divisibility, even if it were a question of law instead of fact.</p> <p>4. Sale — Engine—Defective Parts — Question for Jury. It was proper to submit to the jury the question whether a certain defective part of an engine could practicably be treated as a “metallic piece” within the terms of a contract for the sale of thrashing machinery.</p> <p>5. SAME' — Right of'Rescission — Not Improperly Submitted to Jury. In an action for rescission of a contract and a return of the purchase price, whether or not a jury could have been demanded as a matter of right, it was not error to submit the issues to a jury and receive a verdict and answers to special questions.</p> <p>6. Same — Warranty—“Reasonable Time” to Rescind — Question for Jury. When the seller of thrashing machinery, under a contract providing that failure to pay th