104 Kan. 408 | Kan. | 1919
The opinion of the court was delivered by
The plaintiff bought of the defendants a stock of goods including “all book accounts now on books, and all notes, at one hundred cents on the dollar.” Upon coming into possession he found that several hundred dollars’ worth of the accounts were barred by the statute of limitations when purchased by him, and brought this action to recover the amount thereof. He alleged that as an inducement to sign the contract the defendants stated that $150 to $200 might be slow to collect, but all of them were good, and if not paid he could “come back on defendants for repayment of such uncollectible accounts.” It was alleged that accounts aggregating $595.15 were barred and were void, did not constitute enforceable claims and were of no value, and that the money paid for them ' was without consideration. There was no allegation that any attempt had been.made to collect, but it was averred that repayment had been demanded of the defendants and had been refused. The trial court sustained a demurrer to the petition, and the plaintiff appeals.
Of course, there was a legal defense, but is it to be presumed
“The petition in substance alleges that plaintiff did not know the accounts . . . were barred . . . and the defendants did not reveal to plaintiff the fact that the accounts were barred. The petition in effect charges that defendants failed to deliver to plaintiff $595.15 of the accounts they promised to sell and for which accounts not delivered plaintiff paid $595.15.”
An account not barred is a legal obligation. A barred account is merely a moral obligation. (17 R. C. L’. 666, § 4.) When an -account is represented to be good, this should be held to mean a legal, rather than a mere moral, obligation — one collectible at least by legal process. (20 Cyc. 1256; Anderson’s Dictionary of Law, 489; Black’s Law Dictionary, 543; 14 A. & E. Encycl. of L., 2d ed., 1079; 1 Rapalje and Lawrence’s Law Dictionary, 571.)
While the petition might well be construed to charge a verbal warranty not shown in the contract and hence at variance therewith, it requires no wresting of words from their reasonable meaning to regard it as charging- representations fraudulently made to induce the plaintiff to sign a contract for the sale of the property including the accounts. One allegation is “That in fact said defendant . . . wrongfully and fraudulently deceived plaintiff as to the amount of valid accounts,” and another is that the money paid for them was paid by the plaintiff “because of said false and' fraudulent representations and deceptions so made and practiced upon him.”
The rule of pleading now quite well established is that in the absence of a motion to make definite and certain, a petition, as against a general demurrer, should be liberally construed. (Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557; Upham v. Head, 74 Kan. 17, 85 Pac. 1017; The State v. Addison, 76 Kan. 699, 704, 92 Pac. 581; Bank v. Gann, 95 Kan. 237, 148 Pac. 249.).
The judgment is reversed and the cause remanded for further proceedings.