Robert Burgess & Son v. Alcorn

Citations

• 75 Kan. 735
• 90 P. 239
• 1907 Kan. LEXIS 123

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Objections Not Raised in the Trial Court — Waiver. A defendant who fails to attack by motion or demurrer a petition which states facts sufficient to constitute a cause of action for breach of warranty, and also contains averments that would justify a recovery on the ground of fraud, cannot complain on review that the case was tried throughout as one based on contract.</p> <p>2. Sales — Breach of Warranty — Elements of Damage — Nonnegotiable Note. In an action for the breach of'warranty of personal property, where a note given for a part of the purchase-price is otherwise a proper element of damage, it is not rendered incompetent for that purpose by the fact that it is non-negotiable and that the matters pleaded by the plaintiff would constitute a complete defense to an action upon it, where the defendant has sold it and makes no offer to return it.</p> <p>3. Jury and Jurors — Weighing of Testimony — Falsity—Corroboration. An instruction that if the jury believe that any witness has wilfully testified falsely in a material matter they may disregard his entire testimony need not make an exception in favor of such portion thereof as is corroborated.</p>