99 Kan. 559 | Kan. | 1917
The opinion of the court was delivered by
M. W. Cardwell sold to Charles A. Geiger, for $15,940, a number of grain elevators, some office furniture, and all the capital stock of the Topeka Grain & Elevator Company, a corporation. Geiger received the property, completed the payment of the purchase price, ánd. brought action against Cardwell on the ground that as a part of the transaction, and as an inducement thereto, Cardwell had represented to him that the outstanding contracts executed in the name of the corporation for the purchase of corn at stated prices covered only 2500 bushels, whereas in fact they covered 8854 bushels, as a result of which, in carrying out the contracts for the ad
The defendant contends that the evidence does not sustain the judgment. The case was tried without a jury, and no special findings were made. The decision must therefore be affirmed if it was warranted on any theory of the law permissible under the pleadings, and by any facts fairly to be deduced from any view of the evidence. It is suggested that there was no evidence that the defendant knew of the falsity of the representations complained of, even if he made them and they were not true. There was testimony that the statements related to business done by himself, personally or through agents, that he assumed knowledge on the subject by undertaking to give the facts, and he denied, under oath, the language attributed to him. His good faith in the matter was a fair question for the trial court.
1. The defendant insists that no recovery can be had as damages for the perpetration of a fraud, because the plaintiff, after learning all the facts regarding the corn contracts, chose to carry out the agreement with the defendant, and' thereby waived any fraud by Which he had been induced to enter it. Some courts hold that such a waiver results where the defrauded party completes a partly performed contract after learning of the deception-practiced upon him. (20 Cyc. 92, 93; 12 R. C. L. 414, with note 8.) Others take the view that the fraud is not waived by performance of the contract unless the discovery is made while it remains purely executory. (12 R. C. L. 413.), This court has disavowed the rule that a discovery of the fraud in an early stage of performance puts the injured party to an election between on the one hand stopping operations under the contract and seeking remedy for the fraud, and on the other going ahead under the agreement and condoning the wrong. (Van Natta v. Snyder, 98 Kan. 102, 157 Pac. 432, overruling on this point Thresher Co. v. Gruben, 6 Kan. App. 665, 50 Pac. 67.) In Elwood v. Tiemair, 91 Kan. 842, 139 Pac. 362, it was said that the payment of installments on a contract effects a waiver of any fraud in its inception which is discovered “before the contract is executed” (p. 849), but there the discovery was made before the first installment was paid, and while the contract was purely executory. Here the con
2. The plaintiff presents another sufficient answer to the contention that he is estopped to rely upon the fraud. The evidence justifies a finding, which, if necessary to support the judgment, the trial court must be presumed to have made, that "after the discovery of the falsity of the representations and before the payment of any of the purchase price in excess-of the first thousand dollars, the parties made an agreement, which the defendant later refused to carry out, to arbitrate the
The judgment is affirmed.