105 Kan. 596 | Kan. | 1919
The opinion of the court-was delivered by
Ben Anderson owned a farm in Douglas county which he exchanged with Dan Kirby for the latter’s farm in Linn county, the exchange being made in the summer of .1916. In the fall of that year, and before there was any change in the possession of the farms, Anderson purchased from Kirby the crops on two fields of the Linn county farm, and also purchased some other personal property from him. Subsequently,' he claimed that he had been defrauded by misrepresentations concerning the value of the personal property, and also that Kirby had converted some of the corn to his own use after the sale.
The petition alleged four causes of action: first, for damages resulting from fraud in the sale of a field of corn; second, for fraud in the sale of a field of kafir corn; third, for the wrongful taking of corn belonging to plaintiff; and, fourth, damages for fraud in the sale of a gray mare. On the first two causes of action the court sustained a demurrer to the evidence. On the third and fourth causes of action, the jury found in plaintiff’s favor, but the court granted the defendant a new trial. Plaintiff brings .the case here for review, alleging that there was error in sustaining the demurrer to the evidence, and in setting aside the verdict and granting a new trial on the other causes of action.
In the petition it was alleged that the field of corn contained only 32% acres; that Kirby well knew this fact, but fraudulently represented to Anderson that there were 50 acres in the field, and that plaintiff relied entirely upon Kirby’s representations and bought the corn, paying therefor the sum of $500. The second cause of action was based upon alleged fraudulent representations that the field of kafir corn contained 24 acres, and that the crop was reasonably worth $10 per acre, when, in fact, there were only 18% acres in the field, and it was not worth to exceed $3 per acre.
“I examined the [corn] field and the defendant did nothing to keep me from making a thorough examination of the corn or of the field. He did not do anything to prevent me from measuring the field, and said that we could measure the field, he himself suggesting it, and he told me that I could purchase . . . at 50 acres at 10 bushels, or 12% bushels to the acre and measure the field, but not in those exact words. I did not measure the field because it was late, about three o’clock. It was my hurry that prevented me from measuring the field. I walked through practically all of the field at that time. I had every opportunity to examine the corn field that I cared for.”
In regard to his subsequent measurement of the field of corn, his testimony was—
“When we measured the field we did not measure the entire field, but only from the row to row, only measured, the corn and not the field. I don’t know how many acres there was in the field; I only measured the part on which the corn was actually growing.”
The plaintiff agreed to let Kirby know after he returned home which proposition he would accept, and afterwards wrote Kirby a letter in which he said he would take the corn at.500 bushels.
Among the cases cited to support the contention that the evidence should have gone to the jury is Abmeyer v. Bank, 76
In support of the motion for a new trial, defendant produced affidavits of some of the jurors which satisfied the court that the verdict upon the other two causes of action was a quotient verdict, and the court very properly set it aside and granted a new trial. (Johnson v. Husband, 22 Kan. 277, 283; Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252.) There is no force in the contention that the admission of the affidavits permitted jurors to impeach their verdict.
The judgment is affirmed.