Wait v. McKibben

Citations

• 92 Kan. 394
• 140 P. 860
• 1914 Kan. LEXIS 242

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership Dissolution Agreement — Mistake—Fraud— Reformation — Amendment of Pleadings. In an action to recover on a partnership dissolution agreement the defendant pleaded a mutual mistake by which a provision to turn over a mortgage on one of two tracts of land had been changed to one for turning over a mortgage on both tracts. The evidence showed and the jury found that the scrivener had made a mistake in drawing the contract from the agreed draft furnished by the parties, and that when it was signed the plaintiff knew of the change but the defendant did not. The court had instructed that in order for the plaintiff to recover a mutual mistake must be shown. The defendant asked leave to amend by alleging a mistake on his part and fraud on the part of the plaintiff. This was refused, and the court'rendered judgment against the defendant on the findings notwithstanding the general verdict. Held, error.</p> <p>2. Same — Amendment of Pleading to Conform to Proof — Not Essential to Judgment on Verdict. The matter of amending to conform to the proof being discretionary the ruling in that respect will not be disturbed, but the difference between the allegations and the proof was technical rather than substantial, and the general verdict should have been allowed to stand regardless of any amendment.</p>