Farmers' Stock Breeding Ass'n v. Scott

53 Kan. 534 | Kan. | 1894

The opinion of the court was delivered by

HoktoN, C. J.:

Whether the defense interposed to the collection of the note sued upon be construed as arising upon a breach of warranty, or as a plea of fraud and deceit, the representations made by the plaintiff, through its agents, after the written instrument of sale and warranty had been executed and the sale completed, were wholly immaterial and should not have been admitted. Such representations, made after the sale, could not have been relied upon by the purchasers, or have been any inducement to the sale. Representations made by a seller after a contract of sale has .been consummated are not actionable. There is no consideration for the same. They do not offer any inducement to a purchase already made. It was disclosed upon the trial that a written warranty was given the defendants against an existing temporary lameness of the horse, but nothing whatever was stated therein concerning the horse being a sure foal getter. The allegations in the answers cannot be construed as a defense upon a contract of warranty. Evidently, the defense was founded upon fraud and deceit on the part of the plaintiff, through its agents, and not upon an implied warranty not included in the written warranty accepted by the defendants.

To be abtionable, the representations made by a seller must have been known to be false by the one making them, or at least he must have made them without reasonable grounds for believing them to be true. The representations must be of such a character as are likely to deceive the purchaser, or must be made with the intent to deceive him. The representations must be relied upon and must be taken as true by the purchaser to such an extent as that, if they had not been made, he would not have made the purchase. Hence, such representations must be made before the purchase.

Again, if any representations were made about the stallion being a sure foal getter, the defendants failed to establish their allegations of fraud and deceit, because they did not show that the representations were known to the plaintiff or its agents to be false at the time they were made. Under the rulings of the trial court, very little was established upon the trial by the evidence, and nothing proved as a defense or counterclaim to the note sued on. The trial court ought to have sustained the demurrer of the plaintiff, and entered judgment in its favor.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

All the Justices concurring.