(dissenting) : I dissent from the majority opinion. In my judgment it is grounded on a misinterpretation of the reply. The cause of action in the petition was conversion to recover the market value of certain hard and soft wheat. The necessary averments of such a petition are a description of the property, ownership in the plaintiff, and a wrongful appropriation by the defendant. The answer pleaded a general denial, and in the third paragraph thereof a purcñase of and payment for the wheat. The reply pleaded a general denial, and the following facts-:
“(4) Replying further to the third paragraph of the defendant’s answer the plaintiff says he admits that on or about the 25th day of June, 1897, he agreed to sell to the defendant 1683 bushels and 20 pounds of hard wheat at the price of 64 cents per bushel, and 1723 bushels and 50 pounds of hard wheat at the price of 67 cents per bushel, all of which wheat the defendant received, and the defendant paid to the plaintiff in part payment for said wheat the sum of $328.65, but did not make the plaintiff any other or further payment for said wheat or render to the plaintiff any service or give him any other thing of value for said wheat. And the plaintiff was not indebted to the defendant at the time he sold said wheat to the defendant for storing wheat for him or upon any account whatever.
“(5) Replying further to the third paragraph of the defendant’s answer the plaintiff says that the reason he did not collect from the defendant the full price and value of all the wheat which he sold to the defend-ant on or about June 25, 1897, was that for several years prior thereto he had been depositing with the defendant for storage in its elevator large quantities of both hard and soft wheat under an agreement, as alleged in the petition herein, that the defendant should keep such wheat separate and apart from any and all other wheat and deliver the same to the plaintiff upon demand and should receive therefor one cent per bushel for the- first fifteen days such wheat was kept by defendant and two-thirds of one cent per bushel per month for all the balance of the time such wheat should be kept by the defendant.”
*689For the ‘remainder of the reply see the opinion.' The reply was a departure. The plaintiff in the fourth count of his reply admits that he had sold the wheat to the defendant, and in the fifth count affirmatively asserts that he had made such sale and states the amounts and the prices which the defendant agreed to pay therefor, a part of which he had received, and further charges that “the. reason he did not collect from the defendant the full price and value of all the wheat which he sold to the defendant” was because of certain fraudulent representations and statements of the defendant made to him that he was indebted to it, by which he was induced to allow it a credit therefor on the settlement for the purchase-price of the wheat.
Something is attempted to be made out of the general denial in the reply by the majority opinion. In so far as such general denial was intended to apply to the third count in the answer, which alleged a purchase of the wheat, it was modified by the admissions just referred to in the fourth and fifth counts of the reply.
“Whatever is admitted in a special defense operates, so far, as a modification of a ‘general denial,’ and is to be taken as true, without other proof.” (Albert Wiley v. Keokuk, 6 Kan. 94, syllabus.)
If the plaintiff had parted with the ownership of the wheat he could not maintain conversion. The cause of action alleged in the petition is based upon ownership. When the defendant alleged that the plaintiff had parted with that ownership to the defendant, the plaintiff realized.that a recovery in conversion was legally impossible, shifted his position by his reply, admitted the contract and sale, and alleged the fraud practiced upon him in the settlement and payment for the wheat. The facts thus pleaded were ample to warrant the court in setting aside the settlement and rendering judgment for plaintiff for the unpaid contract price of the wheat.
*690It is asserted in the opinion that “the whole transaction of June 25, 1897, is avoided by the allegations quoted” from the reply. Two answers may justly be made to this assertion: First, the quotation does not fairly state the full scope of the reply; and, second, the reply does not seek to have the whole transaction of June 25, 1897, set aside, nor would the facts pleaded have warranted the court in setting aside any part of the contract of sale except the settlement, that being the only part of the transaction to which the fraudulent representations of the defendant applied, and which induced plaintiff to accept the amount of the storage account in part payment for the wheat. If the facts stated in the reply had been pleaded in a petition it would have stated a good cause of action upon which a court would have set aside the settlement and awarded judgment for the plaintiff for the contract price of the wheat, less the amount admitted to have been paid. The facts charged in the reply were absolutely contradictory of the allegation of conversion. The proof of their existence on the trial would have defeated the action in conversion.
It is said in the opinion, however, that there could not in law have been a sale of the wheat at the time when it is said by both parties that the sale took place and a payment was made, which the plaintiff in his reply states was a payment on the purchase-price of the wheat, because of the non-existence of the subject-matter. This is only a playing with words. What they did, according to the facts alleged in the reply, was to meet and determine the amount of wheat which plaintiff had delivered to the defendant, the grade or quality, and what it was then worth per bushel, and the defendant agreed to give the price and the plaintiff agreed to take it. No complaint was made that any fraud was perpetrated upon the plaintiff up to this point. The fraud consisted in the defendant’s inducing the plaintiff by false representations to believe. *691that he was indebted to it in a certain amount for the storage of this wheat, and by this false and fraudulent representation inducing the plaintiff to accept as a credit on its indebtedness to him for the wheat this storage account, which equaled the entire value of the wheat except the sum of $328.65, for which the defendant gave its check. This was a settlement of the entire wheat transaction, subject of course to be set aside or modified and enforced as modified by the court for fraud. Whether there was a sale in fact is not a question for this court to decide in passing upon the question of departure in pleading. We can only construe the facts charged to determine that question.
The case of Johnson v. Bank, 59 Kan. 250, 52 Pac. 860, was an action in conversion by the bank. In its petition it alleged that it was the owner of the property. The defendant attempted to justify as a constable holding the property under an execution against Mrs.'Sherman, and alleged that the plaintiff’s only interest was that of a mortgagee. The plaintiff replied admitting its interest to be that of a mortgagee only. An objection was made upon the trial to the admission of evidence under the reply because it was a departure from the cause of action alleged in the petition. This objection.was overruled, and upon proceedings in error it was held that there was a departure and the cause was reversed. In Surety Co. v. Bragg, 63 Kan. 291, 65 Pac. 272, the plaintiff brought suit on an insurance policy and pleaded performance of all the conditions of the policy. The defense was a failure to pay premiums. The plaintiff in reply pleaded a waiver. It was held that this was a departure, and the cause was reversed.
The best test of a departure is: Would evidence properly admitted under the reply tend to contradict the allegations of the petition ? Applying that rule to this case we think it demonstrates that there was a departure. The admission in the reply that the plaintiff *692had sold the wheat to the defendant contradicts' the allegation of ownership in the plaintiff. If the plaintiff recovered on the cause of action stated in his petition he would be entitled to the value of the wheat at the time of its conversion, with interest, while if he recovered on the cause of .action stated in his reply he would be entitled to the price at which he contracted to sell it, less the amount paid him. In Johnson v. Bank, 59 Kan. 250, 52 Pac. 860, quoting from volume 6 of the Encyclopaedia of Pleading and Practice, page 460, it was said:
“A departure is the statement of matter in a reply, replication, rejoinder, or subsequent pleading, as a cause of action or defense, which is not pursuant to the previous pleading of the same party, and which does not support and fortify it.”