11 Kan. 190 | Kan. | 1873
The opinion of the court was delivered by
This was an action between Priscilla Blackburn and John Blackburn, as plaintiffs, and Amon Gr. DaLee as defendant. DaLee, as plaintiff in error, brings the case to this court. The judgment below was in favor of Priscilla Blackburn alone and against DaLee. No judgment was rendered in favor of John Blackburn. Hence any ruling of the court below which was merely too favorable to John Blackburn, or which could not have affected the judgment rendered between Priscilla Blackburn and DaLee cannot be considered as material on this petition in error. The errors complained of are as follows:
First: Plaintiff John Blackburn was examined as a witness on the part of the plaintiffs below, and on his cross-examination by the defendant below was asked the following question: “Did you not tell Mr. H. C. Schell that you wanted him to help you get this thing?” (meaning DaLee’s interest in the Lawrence Roller-Plow Company.) Plaintiffs objected to this question on the ground of incompetency. The objection was sustained, and defendant excepted. This ruling was correct. The question was incompetent on cross-examination, for no part of any such a conversation as this
Second: That portion of the testimony of the witness Schell quoted in the brief of plaintiff in error which was excluded by the court was properly excluded because it was not the statement of any fact, nor the statement of any conversation, but was merely conclusions of the witness drawn from facts and conversations. And these conclusions were not drawn from any conversation had with Priscilla Blackburn, or from any conversation authorized by her. Blackburn may have been her agent for all purposes, but the evidence does not show it. It is true he signed her name to one of the instruments in writing for her, but was he an agent of hers further than this, or for any other purpose ? It does not seem from the record that Priscilla Blackburn ever authorized John Blackburn to either trade or talk for hex’, but on the contrary it would seem that she did her own trading and talking, and that the defendant well knew this fact. If this evidence had been competent at the time it was offered as against either of the plaintiffs it should have then' been admitted, and it would have been error to exclude it. But if it
Third: The plaintiff in error complains of the refusal of the court to give a certain instruction. The record does not purport to contain all the instructions, and therefore for reasons often given by this court in other cases we cannot consider the one refused.
Fourth: The plaintiff in error also complains of the refusal of the court to grant a new trial; and here we shall examine the supposed errors in charging the jury, the supposed error in refusing to-set aside the verdict and grant a new trial, and the supposed error in rendering judgment in favor of Priscilla Blackburn. The court charged the jury among other things the following:
“If the jury believe from the evidence that the Black-burns were induced to purchase A. G. DaLee’s interest in the Lawrence Roller-Plow Company, by reason of the representations made by said DaLee, and if *the jury believe the representations were false, they must find for the plaintiffs.
“It makes no difference whether A. G. DaLee knew these representations to be false, or not. It is sufficient that they were false.
“The Blackburns had a right to rely upon DaLee’s statements as to existing facts, without making inquiry of others as to their truth.”
The jury found a general verdict in words as follows: “We the jury find for the plaintiff, and assess her damages at $1,500.” The jury also made special findings, among which are the following:
“Q.-Did DaLee make any statements to the Blackburns, or either of them, which were known to be untrue or false by DaLee when he made them, or at any time before the contract was concluded, or before Blackburn entered upon the active participation in the business of the company?” A«s.-“No.”
“Q-If DaLee in his negotiations with Blackburn made any statements which were untrue, were such statements made*204 fraudulently by DaLee, and with the intent to defraud the Blackburns, or either of them?” Answer, “No.”
According to the evidence DaLee made substantially the same statements and no more to Priscilla Blackburn that he did to John Blackburn. The defendant DaLee moved the court for a new trial upon various grounds, but the court overruled the motion and rendered judgment in favor of Priscilla Blackburn and against DaLee for $1,500. In all this we think there was error. The charge of the court, the findings of the jury, and the judgment of the court were all based upon the erroneous theory that a party may make himself liable to an action at law for damages by innocently, and in good faith making statements which are in fact not true. Now this is not an action in the nature of a suit in equity, nor is it an action on a warranty. It is purely an action at law, as contradistinguished from a suit in equity, and it is purely an action of tort for deceit and fraud, as contradistinguished from an action on contract for breach of a warranty. Nothing of an equitable nature is claimed, or if remotely claimed in the petition below, it was wholly abandoned at the trial; and there has been no pretense, even, that DaLee ever made any warranty with regard to the property which has not been fulfilled. The record shows that the plaintiffs purchased (by a written contract) from DaLee a one-fourth interest in the Lawrence Roller-Plow Company, and paid therefor $800 cash down, and promissory notes (which have not yet been paid,) one for $200, and the other for $1,500, the last secured by a mortgage. The Lawrence Roller-Plow Company owned at the time of the purchase the patent-right for Johnson’s Patent Roller-Plow, and also owned a small amount of other property worth over debts about $800. This property, including DaLee’s interest in said company, was all transferred and assigned to the plaintiffs by an instrument in writing duly executed by DaLee. DaLee made some statements pending the negotiations with regard to the patent roller-plow, and the assets of the company, which were not true. But under
With regard to the sufficiency of the motion for a new trial we would say, where a motion for a new trial has been made by the defendant upon the ground (among others) alleged as follows, “For error of law occurring at the trial and excepted to by the defendant,” all rulings of the court made during the trial, and excepted to at the time they were made by the defendant, should be again considered by the court.
The judgment of the court below is reversed, and cause remanded for a new trial.