The; opinion of the court was delivered by
BURCH, J.:The principal question in this case is ' whether the reply departs from the petition. The petition charged that the plaintiff deposited hard and soft wheat in the defendant’s elevator, there to be stored and kept in separate bins and returned on demand; that immediately upon receiving it, however, the de- • fendant mixed the wheat with other grain, removed it ‘ from the elevator to defendant’s mill,' there manufactured it into flour, and then sold the flour as its own. Part of the deposit was accounted for. Unavailing demand was made for the remainder, and judgment was asked for its value, less a credit of $328.65, made •on June 25, 1897.
The defendant answered by a general denial. When the case first came on for trial the plaintiff’s attorney *680made a statement to the jury showing that the plaintiff had settled with the defendant for the wheat under the belief that it had been stored according to contract, and had allowed the defendant storage charges for the time he supposed the wheat had been on deposit; but that he had discovered the defendant had not kept the wheat in store at all, had converted it to its own use, and was not entitled to the storage charges which had been paid; and hence that the action was brought to recover the storage charges wrongfully charged and mistakenly paid. The case was tried on the theory of the statement instead of the theory of the petition, and verdict and judgment went for the plaintiff.
In a proceeding in error in this court it was properly held that the petition stated a cause of action for the conversion of wheat; that the statement of counsel presented a cause of action for the recovery of money paid by mistake as storage charges upon wheat which had not been kept in store; and hence that a departure clearly appeared. (Hunter v. Allen, 65 Kan. 158, 69 Pac. 159.)
When the cause was returned to the district court the petition was not amended. The defendant answered that on June 25, 1897, it purchased all of the plaintiff’s hard wheat, and had a settlement with him for storage charges upon both the hard and soft wheat; that the amount of the storage charges was deducted from the price of the wheat and a check for $328.65 was given in payment of the balance; that the soft wheat was on hand when demand for it was made and that defendant stood ready to deliver on payment of storage charges accruing subsequent to the settlement. The plaintiff replied denying the truth of the answer, admitting that upon June 25, 1897, he did agree to sell the hard wheat to the defendant for a stipulated price, and received $328.65 in part payment, and stating that he did not collect the full price and value of all the wheat sold the defendant on the day *681named because of his agreement to pay storage. But the reply further changed that “on said 25th day of June, 1897, the defendant represented to the plaintiff that it had kept all the wheat deposited with it by the plaintiff in accordance with said contract, and that by keeping said wheat had earned a sum of money equal to the full value of all the wheat sold to it by the plaintiff except the sum of $828.65, which representations the plaintiff then believed, but has since, and only a few days before this action was begun, ascertained, and alleges the fact to be that the defendant did not keep the plaintiff’s wheat at all, but used it for making flour, as it was deposited with it, as alleged in his petition, and had not earned any sum whatever for storing said wheat, and had no claim against the plaintiff for storing his wheat or upon any account at the time it bought his said hard wheat.”
The defendant refuses to see anything in this reply but the admission of a sale, failure to obtain the full amount of the price because of fraud, and a demand for the unpaid balance. The court reads it otherwise. The whole transaction of June 25, 1897, is avoided by the allegations quoted. The reply shows that the plaintiff acted upon the belief that his wheat had been kept in identifiable form, segregated from other grain in the defendant’s elevator, when in fact it had been ground into flour. This belief was induced by the defendant’s representations that the storage contract had been kept. These representations were false and fraudulent. The sale was therefore of no legal consequence because induced by fraud, and because the fundamental element of a sale — a thing in existence to be sold — was wanting. The settlement of accounts after the supposed sale was vitiated by the same fraud. There was in truth no price to be paid and there were no storage charges to be credited. The conversion of plaintiff’s wheat is distinctly reasserted with a reference to the petition for the full facts, and no relief *682is. askéd other or different from that prayed for in the petition. Fairly considered, therefore, the import of the reply is that the petition was not abandoned, but that all the facts relating to the dealings between the parties were disclosed for the fortification of the petition and the demolition of the answer.
The various statements in the reply by way of admission that the transaction of June 25 was a sale go far toward placing the plaintiff in the attitude of merely seeking the balance of the price, but since in' the same connection he denied the answer, detailed facts which made a sale impossible for lack of an indispensable element, made the settlement on the theory of a sale voidable for fraud, returned to the petition for the statement of his claim, and asked for no relief on the basis of a sale, it cannot be said that he shifted his ground.
The case of Neve v. Allen, 55 Kan. 638, 41 Pac. 966, goes part of the way toward a solution of the problem. There the plaintiff averred that he was the owner in fee simple and in the possession of certain land, the title to which he prayed might be quieted. The answer stated that the defendant was the owner in fee simple of an undivided one-third. The reply conceded that the defendant was the holder of the naked legal title to the share claimed, but advanced facts showing the equitable title to be in the plaintiff and that it would be unjust to allow the defendant to insist upon his legal title. The court said:
“We do not think, however, that this concession changes substantially the claim made in the petition, which need not have contained anything about the nature of the title, whether legal or equitable. The replies met fully the averments contained in the answers, substantially admitting their truth as to the legal title, but stating facts showing that it would be inequitable for the defendants to set up such naked .legal title to defeat-his full equitable claim to the.whole premises.” (Page 643.) „
*683So here the plaintiff was not required to . set out in the petition the facts relating to the credit of $328.65 allowed as of June 25, 1897. The reply met fully the averments of the answer by admitting whát occurred on the day named but stating facts showing the injustice of allowing the transaction to stand as an adjustment of the rights of the parties.
In the case of Cox v. Hayes, 18 Ind. App. 220, 47 N. E. 844, the defendant sought to force upon the plaintiff an unwarranted interpretation of his reply. The plaintiff sued upon an account. The defendant answered that he had paid the account by a check which was accepted by the bank upon which it was drawn and credited to plaintiff on his pass-book and on the books of the bank. The repiy was that the check was accepted and credited by the bank under an agreement that plaintiff would on the next day deposit cash to make good the credit; that he replaced the check with cash at the bank, took the check to the defendant and demanded that he take it up with cash, but that the defendant refused to do so. The court held that the plaintiff did not abandon the cause of action stated in the petition and set up another on the check, but merely showed by the reply that the payment charged in the answer was not in fact a satisfaction of the account.
So here the plaintiff cannot be held to say that he sues for a balance due on a sale of wheat when the reply distinctly asserts that the wheat was converted and ground into flour long before he attempted to sell it, and that the settlement made under the belief that the wheat was in existence and liable for storage was the product of the defendant’s unadulterated fraud.. The transaction of June 25, 1897, was repudiated by the petition, which grounded the right of recovery upon the original conversion of the wheat, and because the answer compelled the plaintiff to set up all the *684facts it cannot with justice be claimed, the petition was abandoned.
An analogous situation is disclosed in the case of Lamme v. Dodson, 4 Mont. 560, 2 Pac. 298. The complaint in an action of ejectment stated a good cause of action by pleading the legal title. ■ The answer denied the legal title and set up the statute of limitations. The reply denied the affirmative allegations of the answer and pleaded a parol agreement to defeat the statute of limitations. The defendant claimed the plaintiff had shifted his cause of action from the legal title pleaded in the petition to an equitable title disclosed by the reply. The court said:
“The parol agreement set forth in the replication is made in reply to the claim of the statute of limitations, contained in the answer. It is intended to rebut the allegation of the ■ answer, that the possession of the respondents was adverse. It is deemed to be denied without further pleading. The appellant by setting up this matter does not assume to rely upon this allegation, or abandon his claim to recover upon the legal title. Such matter, set forth in a replication rendered necessary by the answer, is not a departure in pleading.” (Page 589.)
The present case is clearly distinguishable from those of Johnson v. Bank, 59 Kan. 250, 52 Pac. 860, and Surety Co. v. Bragg, 63 Kan. 291, 65 Pac. 272. In Johnson v. Bank the petition alleged that the plaintiff was .the owner of personal property. The answer was. that the plaintiff was a mortgagee only. The reply admitted this fact. Both by statute and court decision in this state a clear distinction is made between absolute ownership and the special, qualified ownership of a mortgagee, and a mortgagee is always required to plead the facts relating to his title. The admission of the reply was therefore inconsistent with the claim of the petition, and a departure clearly appeared. In Surety Co. v. Bragg the plaintiff alleged performance-of all the conditions of an insurance policy. The de~ *685fense was non-performance of such conditions by failure to pay premiums. The reply pleaded a waiver of payment by failure to Collect an order. The plaintiff could not fail to perform and at the same time perform. Proof of one allegation was necessarily incompatible with the other, and the' matter set up in the reply constituted a departure.
In this case, when all the facts of the reply were narrated it still remained true that the defendant converted the plaintiff’s wheat as the petition alleged. The test of departure applied in the case of Johnson v. Bank, supra — Would evidence of the facts alleged in the reply contradict the facts alleged in the petition? —is satisfactorily met. The further test of departure applied when the facts in the two pleadings are not contradictory — Has the plaintiff abandoned the first position, and staked his right of recovery upon the second ? —is also met when the reply is construed, as it fairly seems to have been intended, as a defense to the new matter in the answer. The statement of such matter is expressly authorized. (Code, § 102; Gen. Stat. 1901, § 4536.)
One other consideration: The rules of law relating to departure must be observed in order that the issue may be clearly and accurately defined; that the defendant may not be forced to trail the plaintiff from one issue to another; that he may not be placed at the disadvantage of being compelled to meet suddenly and unexpectedly a new case after he has prepared himself against a different one; and that when he is through he may, if necessity should arise, plead the record with certainty as a former adjudication. In this instance the case was actually determined on the théory of the petition. The plaintiff’s opening statement to the jury, unlike the one at the former trial, adhered to the cause of action presented by the petition. The court in defining the issues to the jury stated that the plaintiff claimed the defendant had converted his wheat and *686was. liable for the value of it. The jury were instructed in clear and positive terms that the plaintiff’s right of recovery depended upon the conversion of his wheat by the defendant. The verdict, special findings and judgment are based strictly upon the petition, and not upon the reply as a cause of action. Therefore, the defendant has been obliged to meet no departure. He has been defeated upon nothing but the very issue which he insists was the proper one to try. His substantial rights have not been prejudiced.
“The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the ad-' verse party; and no judgment shall be reversed or affected by reason of such error or defect.” (Code, § 140; Gen. Stat. 1901, § 4574.)
Nothing else in the record requires a reversal of the judgment. Having delivered the wheat to the defendant, the plaintiff was prima facie entitled to its return or to its value.
After the plaintiff’s case had been stated to the jury counsel for the defendant outlined the facts constituting the defense to the court, announced that he desired to state such facts to the jury in his opening, and took the opinion of the court upon the question whether the facts stated were provable under the general denial. The court held they were not and required an answer embodying them. This ruling is assigned .as error. Having fully disclosed its defense to the court and to opposing counsel, the defendant lost nothing by the ruling but the time and labor of counsel in writing out the facts in an answer. The defense was not impaired in the least.
In the former case of Hunter v. Allen, 65 Kan. 158, 69 Pac. 159, the opinion commented upon the evidence. It is claimed the facts were therefore conclusively adjudicated here. This court has no such power in a pro*687ceeding in error. (In re Burnette, 73 Kan. 609, 85 Pac. 575.)
The evidence was sufficient to support the verdict. The special interrogatories refused were improper because pregnant with the contradiction of buying wheat not in existence and settling for it with storage charges never earned. When the court came to submit the cause to the jury it found that a single fact yvas decisive of the plaintiffs right to recover: Did the defendant convert the wheat instead of keeping it in store? If the wheat was converted the kind of settlement upon which the defendant relied was negatived, for it presupposed wheat in the elevator with storage charges against it. The defendant made no claim that it settled up a case of conversion for wheat taken for storage but ground into flour and sold. If the wheat was not converted the plaintiff could not recover at all. Therefore all the special interrogatories presented for submission might properly have been refused without prejudice to either party. The instructions to the jury were correct and sufficiently covered the case.
The judgment of the district court is affirmed.
Johnston, C. J., Mason, Smith, JJ., concurring.