Muenzenmayer v. Hay

Citations

• 98 Kan. 538
• 159 P. 1
• 1916 Kan. LEXIS 121

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Petition—Two Inconsistent Clauses — Election. Where a party to an action pleads facts which constitute two causes of action, one for rescission of a contract and the other for damages for breach of warranty contained in the contract, it is proper for the court to require the party to elect on which of the two causes of action he will rely for recovery.</p> <p>2. Appeal and Error — Motion for New Trial-NExelusion of Evidence. An error in the exclusion of evidence on the trial of a cause can not be considered by this court unless it is produced on the hearing of the motion for a new trial.</p> <p>3. Same — Motion for New Trial — Exclusion of Evidence — Judgment. A judgment will not be reversed for error in giving or refusing to give instructions to the jury or in refusing to submit special questions, when based on evidence excluded on the trial, and it is necessary to have that evidence to determine the correctness of the instructions given or refused, and to determine whether the questions should have been submitted, where that evidence is not produced on, the hearing of the motion for a new trial.</p> <p>4. Same — Refusal of Instruction on Immaterial Matter — Not Reversible Error. Where parties agree to submit a cause to a jury on special questions and for a general verdict, and agree that the court shall then render such judgment as it might deem proper, it is not reversible error for the court to refuse to give an instruction on a question of fact which does not materially affect those necessary for the court to know in order to render judgment.</p> <p>5. Same — Refusal to Submit Immaterial Special Questions — Not Reversible Error. Under the circumstances disclosed in the last paragraph, a judgment will not be reversed for error in refusing to submit special questions where the answers to those submitted give the court sufficient facts on which to render judgment.</p>