
    Charles Kunz v. J. C. Grund and others.
    January Term, 1874.
    1. Pleadings: Issue: Evidence. 'Where the answer admits the cause of action stated in the petition, and sets up a special defense thereto, it is not error to reject testimony tending to show that the plaintiff had no such cause of action.
    2. -: Amendment: Discretion. The amendment of pleadings is largely within the discretion of the trial court, and this court will not disturb its decision where it does not appear that such discretion was abused. [Burtis v. Wait, 6 Pac. Bep. 785.]
    Error from Leavenworth district court.
    Action by J. C. Grund and Henry Foote, as plaintiffs, to recover $477.75 for 68] barrels lager beer sold and delivered *by them to Kunz. Trial, and judgment for plaintiffs, at the September term, 1873, for the amount of their claim.
    
      Stillings é-Fenlon, for plaintiff in error.
    The statute makes the act of selling “any fermented or other intoxicating liquors,” without proper license, a misdemeanor, punishable by fine and imprisonment. No valid cause of action can arise out of an unlawful act, and, under this very enactment, this court has so decided. Lolson v. Hope, 7 Kan. *162; State v. Volmer, 6 Kan. *371. We anticipate the answer to this position, — that we did not plead the unlawfulness of the contract. It is true, in specific words, we did not, nor did good pleading require it to be done. What is the condition of the pleadings ? and was it necessary for the defendant to set up specifically in his answer the fact that the plaintiff had no license to sell liquor? The plaintiffs allege a general indebtedness. The defendant denies the indebtedness, and alleges certain other matters, which, if true, would entitle him to judgment against the plaintiff. As we understand the case of Marley v. Smith, 4 Kan. *185, it was there decided that where a general indebtedness is alleged, anything, of whatever nature, may be proved under the general denial; and the correctness of that decision has never been questioned. There is not anywhere in the answer in the case at bar an admission of the indebtedness alleged in the petition. Defendant endeavored to prove that which would defeat plaintiff’s claim, just as payment would have defeated, it. Dolson v. Hope, supra.
    
    If there was any question as to the evidence under the pleadings, the court should have allowed the amendment asked, and it seems to us it was an abuse of discretion not to do so.
    
      Pendery é Goddard, for defendants in error.
    It was not error to exclude evidence of the fact that plaintiffs had no license to sell beer. Under the pleadings it was *not a question for the jury. The defendant, by expressly admitting a sale and delivery, was estopped from showing any fact that would contradict that admission. A party cannot contradict, by evidence at the trial, what the pleadings themselves admit in the cause on trial. A material fact' admitted need not be proved, and cannot be disproved. 1 Phil. Ev. 454, note 129; Sandford v. Smith, 5 Bush, 471; Bobbins v. Codman, 4 E. D. Smith, 325; Paige v. Willet, 38 N. T. 28; Graham v. Trimmer, 6 Kan. *231.
   Brewer, J.

Only a single question is presented in this ease for our consideration. The action was brought in the district,court of Leavenworth county to recover for goods sold. The petition alleges a general indebtedness for goods sold and delivered at the special instance and request of the defendant, and contains an account showing the amount and kind of goods delivered, the dates of delivery, and the price.. The w'hole account was for lager beer. The answer contained two defenses, the first denying every allegation of the petition, except those expressly admitted; and the second, after stating that “the said defendant admits and alleges that at the time stated in said petition and bill of particulars said plaintiff sold and delivered to this defendant the beer therein stated and alleged, and in consideration of the price therein stated, to be thereafter paid by this defendant to-said plaintiffs, said plaintiffs undertook,” etc., going on to allege that the beer was warranted to be sound and merchantable, but was in-realty sour beer, and claiming damages therefor. Plaintiffs filed a. reply containing a general denial. On the reply defendant claimed the right to open and close the case, and the court sustained the claim. Of course this could only be because upon him “rested the burden of the issues.” Code, § 275. On the trial one of the plaintiffs, Henry Foote, was asked this question: “At the date of the contract and delivery of the beer mentioned in the petition did the plaintiffs have a license, either as grocers, dram-shop keepers, or tavern keepers?” Objection being make, the same -was sustained, *and "the evidence ruled out, to which exception was duly taken. The correctness of this ruling is the only question for our decision. We think the ruling was right. On the pleadings, the plaintiffs were entitled to judgment. So the defendants claimed, and so the court held, and rightly, too. But this question tended only to elicit a defense to the plaintiff’s right of recovery. In other words, the defendant, by his pleading, admitted the plaintiffs’ cause of action, and upon the trial asked to be permitted to prove that they had none. The-testimony must be confined to the issues in the pleadings, and the-only issue for trial was that presented by the special or second defense stated in the answer.

Application was made for leave to amend the answer so as to present an issue under which this testimony would be competent. The court overruled the application, and we see no such abuse of the discretion vested in the trial court as will justify this court in disturbing its decision. Taylor v. Clendening, 4 Kan. *524.

The judgment will be affirmed.

(All the justices concurring.)  