
    John W. Truitt and others v. J. C. Baird.
    January Term, 1874.
    1. Process: Form of. It is not a substantial error, affecting the rights of a party, to overrule a motion to set aside a summons, when the only objection to it is that it commences: “The State of Kansas, Lyon County, ss.: To the Sheriff of Lyon County, ” etc., instead of “The State of Kansas to the Sheriff of Lyon County, ” etc.
    2. Pleading: Separate Defenses. Where two defenses are set up in an answer, they should be separately stated and numbered; but where the defect is not called to the attention of the court by motion, it is waived.
    3. Partnership: Action between Partners for Breach of Contract. Where two members of a partnership enter into a separate agreement to put into the partnership a specific amount of property, and there is a breach of such agreement by one party, the other may maintain an action at law to recover for such breach, without a settlement of the affairs of the partnership. [White v. Scott, 26 Kan. 481.]
    
    4. Evidence: Selling Price of Property. Where the question in issue is. what is the lowest price at which a certain kind of property is selling at a particular place, proof of a bona fide sale of such property; actually made at that place in the ordinary course of business, and in the absence of peculiar and extraordinary circumstances tending to influence the price, is competent testimony.
    Error from Lyon district court.
    Action by Baird to foreclose a mortgage given to him by Truitt and wife. The answer set upon a counter-claim or set-off, and damages for breach of contract. The case was tried at the September term, 1872, of the district court. Yerdict for plaintiff, and judgment of foreclosure and for sale of the mortgaged property.
    
      R. M. Buggies, for plaintiff in error.
    The constitution (section 17 of art. 3) provides that the style of all process shall be “The State of Kansas.” The style of the summons, if it was anything, was “Lyon County.” But *we contend that it only fixed the venue from which the process issued, after which should follow “The State of Kansas to the Sheriff,” etc. Sée Bruffey v. Brickey, 5 Mo. 230. If the defendants had a right to have the summons quashed, it was a substantial right which was not waived by answering over. Evans v. lies, 7 Ohio St. 233, 236.
    The contract between Baird and Truitt was that Baird had to put, into the capital stock trees at the “lowest selling price.” He claimed that he paid $50 per thousand, while the answer alleges that the lowest selling price was $35 per thousand. It was competent for Truitt, to prove this allegation; and the question asked of Baird, and ruled out by the court, was competent.
    
      Buck & Cunningham, for defendants in error.
    The summons did not follow the language of our constitution; but, as the objection was purely technical, (he error should not be allowed to overthrow substantial justice. Johnson v. Provincial Ins. Co., 12 Mich. 216; Plahto v. Merchants’ & M. Ins. Co., 38 Mo. 249; Frakes v. Brown, 2 Blaekf. 295; Webster v. Farley, 6 Blaekf. 164; Obermyer v. Nichols, 6 Bin. 184; Means v. Presbyterian Church, 3 Pa. St. 99; Cleland v. Tavernier, 11 Minn. 194, (Gil. 126;) State Bank v. Buckmaster, 1 111. 176; McPherson v. Leonhard, 29 Md. 377. It cannot be held that the words “State.of Kansas, Lyon County,” at the commencement of the summons in question, are simply the “venue,” and that “The State of Kansas” must be repeated, because we have no such thing now as “venue,” as it was once understood.
    There was no error in sustaining plaintiff’s objection to certain questions put to him, and the ruling out of certain evidence then already admitted. The allegation of the answer “that the note and mortgage mentioned in plaintiff’s petition is a part of and grew out of one entire transaction,” etc., could only be met by a general denial; and when, in the progress of the trial below, the proof showed its untruth, the court properly sustained the objection to the question asked, and ruled out all evidence in relation to matters that did not “arise out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action,” for such matter so rejected *was not admissible as counter-claim. Code, § 95; Nash, PL 75; Swan PL 258. The evidence excluded was not responsive to any of the issues made by the pleadings, even though proper in other respects. '
    
      
       See Hogendobler v. Lyon, ante, *276, and note.
    
   Brewer, J.

Two questions are presented in this case. One arises on a motion to set aside a summons. The summons commenced in this form: “The State of Kansas, Lyon County, ss.: To the Sheriff of Lyon County,” etc. The constitution provides that “the style of *11 process shall be, ‘ The’State of Kansas.’ ” Article 3, § 17. It is insisted that “The State of Kansas” is limited by “Lyon County,” and •that' the command to the sheriff is from the county, and not from the state. This error, if error it be, is purely technical, and does not affect the'substantial rights of the party, and may therefore be disregarded.

' The second question arises on the rejection of testimony. The action was. on a note and mortgage. The answer set up two defenses: (1) A general denial; and (2) a counter-claim or set-off. In this second defense the defendant alleged that the note and mortgage were a part of and grew out of one entire transaction, as follows: That a short time before the execution of the note Truitt and Baird where equal partners in the nursery business, Truitt being ignorant and Baird thoroughly conversant with the business; that Baird represented that he had a large amount of nursery stock in Quincy, Illinois, which he would put into the capital stock of the firm at as low a price as such stock was selling in Quincy, as against which Truitt might furnish money or property of equal value; that to this Truitt assented; that in pursuance thereof Baird turned in ten thousand apple trees at $50 per thousand, falsely and fraudulently representing that such trees were selling at $50 per thousand in Quincy, when in fact .he had purchased them there at $35 per thousand; that Truitt, ignorant of the fact, and relying on Baird’s representations, turned *into the capital stock money and other property of value equal to that of the trees at $50 per thousand; that a short time thereafter Baird proposed to sell his interest in the partnership to Truitt, .and, in order to induce him to purchase, knowingly, falsely, and fraudulently represented that all of the nursery stock of said firm was in a .good living and growing condition, and would do well, and that Truitt, ignorant of the truth, and relying on these representations, purchased his interest for $1,100, for a part of which the note and mortgage sued on were given; that Baird’s interest in said.stock, if it had been as represented, would have been worth $1,100, but in fact said stock was not in good condition to live, as Baird well knew, but was in a ■dying condition, and more than 80 per cent, did die, and the rest were of little value, by which Truitt was damaged in the sum of $1,000, for which he asks judgment. To this a reply was filed containing a general denial. The bill of exceptions states that testimony was given tending to prove and disprove all the allegations of this defense except as to the price paid by Baird for the trees. Baird, while on the stand, testified that he bought three of the ten thousand trees at a wholesale and retail nursery at Quincy. He was then asked what he paid ■ for those trees he bought in Quincy, Illinois. To this question an ■objection was made that it was incompetent, irrelevant, immaterial, and not responsive to any of the issues in the pleadings. The objection was sustained, and this ruling is the alleged error.

i o determine whether there was any error in this ruling, we must inquire whether in the second defense stated in the answer there be sufficiently pleaded any counter-claim or set-off, and, if so, whether the testimony ruled out tended to prove any allegation of such counter-claim or set-off. In reference to the first question, it would seem that the pleader had attempted to incorporate in the one defense two separate defenses; one a cause of action growing out of a contract to furnish money and property to the partnership, and the other for damages resulting from false representations in the sale of an ■ interest in the partnership. These should have been *separately stated and numbered; but, as no motion was made to compel the defendant to do this, the error was waived. No attention need be paid to the second of these defenses, as the testimony rejected could have no bearing upon it. "Was the first sufficiently pleaded ? No objection was. made to the manner in which this defense was pleaded; no motion to make the answer more specific and certain. The plaintiff was content to take issue on the pleading as presented. If, therefore, by a liberal construction of its language, a cause of action is stated, it must now be held sufficient. It alleges a contract' to contribute an equal amount to a partnership, the plaintiff to contribute nursery stock, and the defendant money and other property;. It avers full compliance on the part of the defendant, and a breach-thereof by the plaintiff. It also avers a subsequent closing of the-partnership by a sale of the interest of one partner to the other. This, as it seems to us, shows a cause of action in favor of the defendant and against the plaintiff; a cause of action also arising on contract, and therefore proper matter of set-off. It is not a matter involving any reopening of the partnership affairs, and a settlement of the partnership accounts. It is a contract independent of and outside the partnership business. It does not involve any question as. to the general accounts between the partners. In Collamer v. Foster, 26 Vt. 758, the court says: “Thus, if one partner agrees to advance a specific sum of money as his proportion of the capital, an action at law will lie to recover that amount, even during the partnership. Such was the case of Venning v. Leckie, 13 East, 7, and Gale v. Leckie, 2 Starkie, 107.” See also, Currier v. Webster, 45 N. H. 226; Williams v. Henshaw, 11 Pick. 79; Story, Partn. § 219, and notes; Coll. Partn. 235, § 270.

The other question is whether the testimony rejected tended to prove • any allegation in this defense, and was competent evidence. The contract of plaintiff was to put into the partnership certain nursery stock “at as low a price as such stock was selling in Quincy, Illinois;” and the question was, what was *such price ? The plaintiff' was called as a witness, and testified that he purchased this ■ stock, or a portion of it, at Quincy, and was then asked what he paid for it. Now, it may be conceded that the price paid for an article is-not the ordinary test of its value, nor the ordinary evidence thereof. But the point of inquiry here was not the value of such stock in-. Quincy, but its lowest selling price there. This may not be absolutely and necessarily determined by proof of a price at which a single sale was actually made. Extraordinary circumstances may have induced a sale at an excessively low figure. A price obtained under such circumstances was not the price contemplated by the parties to ■ this contract. It was, however, the lowest price at which,, in the ordinary course of business, such stock was sold in that market. And proof of a bona fide sale, actually made, in the ordinary course of' business, and in the absence of any peculiar and extraordinary circumstances, is strong evidence of such lowest selling price. As such,, it was testimony bearing upon one of the material allegations of this-defense, and competent testimony to sustain it. It seems to us, therefore, that the court erred in sustaining the objection to this testimony;, and for this error the judgment must be reversed, and a new trial; awarded.

(All the justices concurring.)  