Missouri Pacific Railway Co. v. Henrie

Citations

• 63 Kan. 330
• 65 P. 665
• 1901 Kan. LEXIS 144

Syllabus

<p>SYLLABUS BY THE COUBT.</p> <p>1. Pleading and Practice — Action against Railroad for Breach of Contract — Amendment of Petition. The plaintiff brought an action to recover for the breach of an express agreement to the effect that the defendant railway company, in consideration of the use of a right of way over plaintiff’s land, would furnish plaintiff and his wife free passes over the defendant’s railroad during their natural lives, and he asked to recover the value of the passes. After a protracted litigation, he failed to recover on that issue, and was permitted to amend his petition and set up a cause of action for the permanent appropriation of the land taken and used without authority as a right of way, and he asked a recovery of the value of the land taken and for damages done to that not taken. Held, that the cause of action set up in the amended petition differed substantially from that stated in the original petition; that the remedies sought in the two pleadings were based upon entirely different rights and were inconsistent; and that the allowance of the amendment was material error.</p> <p>2. - Inconsistent Remedies — Rule Stated. The general rule is that, when the law gives several means of redress or relief predicated upon conflicting thepries, the election of one of them operates as a bar against the subsequent adoption of the others.</p>