90 P. 770 | Kan. | 1907
The opinion of the court was delivered by
This action was commenced in the city court of Topeka by the plaintiff filing an ordinary bill of particulars, with a verified copy of the account sued on attached. The defendants filed no bill of particulars or answer therein. After the appeal to the district court the defendants filed an answer, in which they did not dispute the account but did assert that the plaintiff was not the owner thereof, and set up the written assignment from plaintiff to Abram Troup. In other words, they answered that the plaintiff had for a valuable consideration sold, and, in writing, had assigned, the account to Troup and they had paid the same to Troup.
In reply the plaintiff admitted the execution of the assignment and the receipt of $166.76 therefor, but alleged that it had, at the time of assignment, two accounts against the defendants, one for $166.76 and the one sued on, for $268.25, the latter being an account which it did not know of at the time of the assignment and did not intend to include therein; that in fact Troup by the assignment acquired no interest in either of the accounts^ but in the transaction was acting for the defendants, who really paid the $166.76.
It will thus be observed that no fraud, concealment or deception in the making or procurement of the contract is claimed. On the other hand, the defense to the assignment is that the plaintiff was mistaken as to what claims it had which would be embraced in the language of the assignment, viz.: “all our right, title and interest in and to any and all claims we may have against the Spear Company of North. Topeka, Kan.” It is not suggested in defendants’ brief, but it occurs to
Be this as it may, we find no reversible error in the proceedings. The first and second assignments of error relate to the refusal to give instructions requested. Each of the requests is based upon an assumption of fact which is negatived by a special finding of the jury, and such finding is supported by some evidence. Hence the requested instructions, if correct and if allowed, would have become immaterial.
The third and fourth requests for instructions did not contain correct statements of the law. One party to a trade or deal is under no legal obligation to communicate all the facts within his knowledge which may influence the deal. He may not deceive, mislead or prevent investigation; he may, however, be silent and be safe.
The sixth and seventh assignments of error relate to the overruling of objections to evidence of defendants’ insolvency. The plaintiff had set up that Troup in procuring the assignment acted as the agent of the defendants — that the assignment was really a settlement by the defendants of their indebtedness by part payment. In response to this the defendants, by the evidence objected to, sought to show that they were really insolvent and that a settlement by part payment under such conditions would not be without a consideration. If there was anything within the jurisdiction of the court and under the pleadings as they were to try, and we are inclined to think there was not, this evidence was proper.
