94 Kan. 532 | Kan. | 1915
The opinion of the court was delivered by
The plaintiff sued to recover $1137.50 alleged to have been paid to the defendants by reason of their fraud and misrepresentation in respect to the sale
The court eliminated the question of fraudulent representation as to the value and salability of the patented article and the right to sell it, and it is claimed that this leaves the plaintiff in the situation of having received exactly what he bargained for, and it is argued that even if the defendants practiced fraud upon the plaintiff the latter can not recover except upon a showing of actual damages. But this was eliminated for the reason that the statute had run as to it and the other ¡allegations as to the fraudulent scheme and pretense
The defendants requested an instruction that unless the jury should find that before the representations were made to the plaintiff the defendants had agreed among themselves that Penfield was to pay nothing for his share in the patent right, they must find for the defendants, and that if they should find that Penfield was not indebted to Brewer for his one-half interest or had not paid him therefor the verdict must be for the defendants ; also, that it was the duty of the plaintiff to make a reasonable effort to realize upon his investment before seeking to rescind the contract. These and certain others not necessary to mention were refused, and a charge was given to the effect that if the secret agreement was entered into to induce the plaintiff to believe that Penfield was purchasing one-half of the territory at the agreed price of $2275, and the plaintiff was thereby induced to pay such sum after the defendants having in fact agreed that Penfield was to pay nothing, the plaintiff could rescind by reason of such fraud. We have examined the instructions given, and they appear to have fairly and correctly stated the law applicable to the controversy.
The special questions requested and refused had reference to the previous knowledge and experience of the plaintiff and Penfield in the business of selling and handling patent-right agencies for tools, to plaintiff’s endeavor to dispose of his interest, and also whether Penfield received any of the money paid by the plaintiff, and if so, how much. Such of these as were not included in the general verdict were immaterial, and the refusal of the request was not erroneous.
The pleading and the proof were to the effect that the defendants concocted a scheme to get the plaintiff’s money by leading him to believe that the investment was one in which they would show their faith by their works, in that Penfield should falsely pretend to share
The judgment is therefore affirmed.