Naugle v. Naugle

Citations

• 89 Kan. 622
• 132 P. 164
• 1913 Kan. LEXIS 86

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Specific Performance — Verbal Contract — Damages—Petition States but One Cause of Action. A petition which alleges a verbal agreement to sell real estate, a sacrifice of plaintiffs’ land for $1500 less than it was worth in order to comply with such agreement and possession and permanent improvement by the plaintiffs, but expressly alleges or asks no damages— held to state but one cause of action, under which performance or, in default thereof, damages may be recovered.</p> <p>2. - Subsequent Action on Same Contract — Res Judicata. After being defeated in such suit in their attempt to compel specific performance the plaintiffs sued the defendants for damages. Held, that such action was barred by the determination of the former suit.</p> <p>3. - Cause of Action Not to be Used Twice. While in fact the question of damages was not litigated or determined in the former suit, still as such relief was possible and inhered in the cause of action therein set up, the same cause of action can not be again used to obtain the relief which might have been had in such prior proceeding.</p> <p>4. - Splitting Cause of Action — Different Kinds of Relief. The same reason which precludes splitting a cause of action forbids its repeated use to obtain different kinds of relief which could have been had in the first action.</p> <p>5. PiÍeadings — Demurrer—When Sufficient in Form. While a demurrer to a portion of an answer searches, the record and may be sustained as to the petition, still when the latter, though in general terms, sets forth a prima facie cause of action and has been met by answer instead of demurrer, it will be deemed sufficient.</p>