John Deere Plow Co. v. Spatz

Citations

• 78 Kan. 786
• 99 P. 221
• 1908 Kan. LEXIS 145

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Commencement and Dismissal of a Civil Action— Recovery of Expenses by Defendant. Where a plaintiff commences a civil action, but before trial dismisses it with prejudice and pays all legal costs incurred therein, the defendant, in the absence of malice, want of probable cause, or bad faith, can not recover damages for loss of time, expenses or attorney’s fees incurted by him on account of such suit.</p> <p>2. - Same. S. bought a thrashing-machine, giving his promissory note in payment therefor. In the contract of purchase it was stipulated that if the machine did not work the notes would be returned and .the machine taken back. The machine failed to work and was returned, and the notes were demanded. The demand to return the notes was refused. An action was commenced by D. on the notes, but before trial it was dismissed with prejudice, and D. paid all the costs taxed in the case. Afterward S. commenced an action against D. to recover attorney’s fees and hotel, traveling and other expenses incurred when preparing for the trial in the case which was dismissed. No malice, want of probable cause or bad faith being alleged against D., held, that such an action can not be maintained.</p> <p>3. - Case Distinguished. The case of Osborne & Co. v. Ehrhard, 37 Kan. 413, 15 Pac. 590, cited and distinguished.</p>