Avery Manufacturing Co. v. Lambertson
Avery Manufacturing Co. v. Lambertson
Opinion of the Court
The opinion of the court was delivered by
The first assignment of error is the ruling of the court upon the motion of the plaintiff that the answer be made more definite and certain in five different parts thereof, which were specified. The court allowed the motion as to three of the specifications and denied it as to two. Both the plaintiff and the defendant excepted to the ruling, and the defendant was granted leave to file and did afterward file an amended answer. The exception is too general to raise any question for review. A single exception to a series of rulings is unavailable if any one of them is correct.
Further, it is urged that the court erred in its second conclusion of law, which reads:
“That the agreement to indorse subsequent payments upon this $425 note, embraced in the correspondence between the plaintiff and the defendant, was based' upon a sufficient consideration, as the settlement of a doubtful and disputed claim, and was a valid contract between the parties.”
The objections to this conclusion of law are: (1) That the defendant did not plead the compromise as a defense; (2) that there was no consideration for the agreement to indorse future payments on this particular note. It is technically true that the defendant did not plead the compromise of the claim that the $400 paid by Cunningham had not been applied on the surety note, as Cunningham directed. Evidence was offered, however, of this fact without any objection on the part of the plaintiff, and witnesses were cross-examined by plaintiff’s attorney in relation thereto. The parties to an action may enlarge the issues by mutually trying out issues of fact not involved in the pleadings.
The contract, however, was pleaded, and was alleged and proved to be a written contract. A written contract imports a consideration. (Gen. Stat. 1901, § 1196.)
It was unnecessary to allege a consideration or to prove in what it consisted, at least until the issue of no consideration had been raised by the reply, which
The finding of fact, which is embraced in this conclusion of law, as to what constituted the consideration, while justified by the evidence, is wholly immaterial, and no error can be predicated thereon.
The judgment of the district court is affirmed.
Reference
- Full Case Name
- The Avery Manufacturing Company v. N. Lambertson
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- SYLLABUS BY THE COURT. 1. Practice, Supreme'Court — General Exception to Different Rulings — Motion to Reform Pleading. A general exception to a number of different rulings on a motion to reform a pleading is unavailing unless all of the rulings are erroneous as to the party who takes the exception. 2. Estoppel and Waiver — Trial of Issue Not Raised by the Pleadings. Where the parties to an action contest a question of fact by examining and cross-examining witnesses with reference thereto without objection by either, although such fact is not at issue under the pleadings, neither party will be heard to say that a finding by the court, as to such fact, is without the issues in the case. 3. -Enlargement of the Issues. In such a case the parties by their conduct will be held to have broadened the issues made by the pleadings and to have included the contested fact therein. . 4. Written Contract — Consideration—Pleading—General Denial. Where a defendant in his answer pleads, as a defense, the making of a written contract between himself and the ' plaintiff, but specifies no consideration for such contract, the law imports a consideration therefor. And if this defense is only controverted in the reply by a general denial the issue of no consideration is not raised — the want of consideration must be pleaded in the reply.