Lapham v. Kansas & Texas Oil, Gas & Pipe Line Co.

Citations

• 87 Kan. 65
• 123 P. 863
• 1912 Kan. LEXIS 89

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Accounts'—Jury Demanded — Reference Ordered. At the commencement of this trial the court, by a motion to refer, was required to determine, over the objection of, one party, whether the motion should be allowed or a jury trial awarded. Held, that the pleadings are determinative of the question, and that no error was committed in , sustaining the motion to refer.</p> <p>2. -Same. The claim for services and the forty-seven items of expenses set forth in the petition, with proper credits of payments thereon, constitute one account only. The an- . swer challenges the correctness, of the charge for services and of the items of expenses therein, and sets forth thirty-four items of alleged payments, which, if correct, should have been included in the account. Held, that no mutual accounts were involved.</p> <p>3. -Same. That one party kept one side of the account and the other party the other side thereof is immaterial in determining whether there were mutual accounts.</p> <p>4. -Evidence — Variance. Upon the trial of this case the defendant offered evidence of payments claimed to have been made by it to plaintiffs, other than those set forth in its itemized statement. Held, that the exclusion thereof, in the absence of a request to amend the answer, was not error.</p>