92 P. 1109 | Kan. | 1907
Lead Opinion
The opinion of the court was delivered by
This action was brought by the First National Bank of Horton against B. F. Abmeyer to recover on a promissory note for $400 made by Abmeyer to C. A. Wright, who, it was alleged, transferred it to Alex Dunn, jr., who in turn sold and delivered it
“I instruct you that under the evidence in this case, there being no evidence that Alex Dunn, jr., or the plaintiff had any knowledge or notice of. any fraud or claim of fraud in the inception of the note, you should find for the plaintiff in the sum of $432.75.”
The court was not justified in taking the case from the jury. There was some testimony tending to show that there was fraud in the inception of the note — at least enough to warrant the submission of the question to the jury,.and, that being shown, it then devolved on the bank to prove that it was an innocent purchaser. Whether the prima facie case arising from proof of
It is contended that the representations of Wright, if false, were mere matters of opinion, which cannot be regarded as fraudulent. Ordinarily the expression of an opinion or belief by a vendor as to quantity or value, although false, is not a basis of action or ground of relief. Where, however, the parties do not stand upon a basis of equality — where the vendor assumes to have knowledge and asserts an opinion upon a matter of which the vendor is ignorant, and the misrepresentations are made with intent to deceive, the vendee who relies upon and is injured by them is not without remedy.
Here the disparity in the knowledge of the vendor and vendee was marked. Wright was a farmer, accustomed to growing and measuring corn. He assumed to know and stated that there were 1300 bushels, of corn in the field, and there was testimony that he sold it upon that basis at the rate of 38 cents per bushel. Abmeyer, on the other hand, was a merchant tailor, wholly without knowledge or experience in measuring corn in the field, whose ignorance and inexperience in the matter were well known to Wright. Wright stated that he was absolutely sure that there were 1300 bushels of the corn, and Abmeyer testified, without dispute, that he bought the corn relying upon the representations of Wright and on his statement that he was selling him the quantity named. Besides the testimony to the effect that the sale was made on the basis of 1300 bushels, there is the supporting circumstance that the parties bargained about the price per bushel to be paid for the corn. Not agreeing as to the price, Wright interviewed a dealer to learn the ruling price of corn in the market, and on the informa
It is said that Abmeyer visited the corn-field in company with a farmer and had an opportunity to learn whether the representations of Wright were true or false, but one who cheats another by a falsehood, intended to deceive, is hardly in a position to say that his victim ought not to have believed him. In Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496, where a party selling land made false representations as to the number of acres of bottom land in the farm, the number of acres of corn growing on the farm, as well as the rentals of the pasture land, it was contended that the buyer, to whom the representations were made, went upon the farm, and might by inspection and inquiry have discovered the falsity of the representations and therefore had no right-to rely upon them. This contention was ■denied, the court remarking:
“The trend of the decisions of the courts of this and •other states is toward the just doctrine that where a contract is induced by false representations as to materia,! existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the deceit that the party to whom the- representations were made might, with due diligence, have discovered their falsity, and that he made no searching inquiry into facts. Tt matters not,’ it has well been declared, ‘that a person misled may be said in some loose sense to have been negligent. . . . For it is not just that a man who has deceived another should he permitted to say to him, “You ought not to have be*881 lieved or trusted me,” or “You were yourself guilty of negligence.” ’ ” (Page 440.)
Since there was evidence tending to show fraud in the inception of the note, the burden was upon the bank to show that it acquired the note bona fide for value in the usual course of business, and under circumstances which created no presumption that facts impeaching its validity were brought to the notice of the bank or its managers. (Kennedy v. Gibson, 68 Kan. 612, 75 Pac. 1044.) This rule of law placing the burden upon the holder of paper fraudulently obtained appears to have been overlooked, as the court directed a verdict upon the theory that there was an absence of proof that Dunn or the bank had notice of fraud in the inception of the note. To meet the prima facie case arising from proof of fraud testimony was offered of the good faith of the bank and that it had no notice of any fraud on the part of Wright, but whether the prima facie case was overcome was a question for the jury, and hence the ruling directing a verdict was error.
The judgment is reversed and the cause remanded for further proceedings.
Concurrence Opinion
(concurring specially) : I concur in the decision of this case — that it was error for the court to instruct the jury to return a verdict for the defendant. On the other hand, as this case is remanded for. a new trial, I do not think the law enunciated, presumably as a guide to the court in that new trial, should be based upon the hypothesis that Wright, in his representation of the amount of the corn, acted fraudulently, and that -Abmeyer was, in law, absolved from any duty of looking to his own interest. The evidence shows that the corn was immature when sold, and that Abmeyer called to his aid a farmer friend who went with him and inspected it before closing the deal. The
In the absence of the record I am assuming that there was .no misrepresentation as to the acreage. If, however, there was such misrepresentation,, the truth in relation thereto not being a subject of accurate estimate but involving considerable delay and perhaps expense in ascertainment, the question comes within the principle enunciated in Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496, cited in the majority opinion, and Abmeyer had a right to rely upon a representation of the fact, which is subject to accurate ascertainment, and of which the owner may be presumed to have been fully informed. But the ultimate yield of immature corn is not such a, fact. It is a mátter of common knowledge that results equally as disappointing as in this case come from corn-fields that in an immature state promised as great returns as were estimated in this case. The representation was not of an existing fact, peculiarly within the knowledge of the seller, but, in part at least, an estimate of a prospective development. That the result did not reach the estimate does not, necessarily, impeach the good faith of the seller nor of the defendant’s farmer friend. One has no right, in the purchase of a horse made in broad daylight and with full opportunity of inspection, to rely upon even a warranty of soundness when the horse has eyes which may be seen for a block to be as white and opaque as a hard-boiled egg with, the shell removed.
