91 Kan. 181 | Kan. | 1913
The opinion of the court was delivered by
Action for damages. The second amended petition alleged in substance that'the plaintiff received, a letter from defendant Starrett inquiring whether he would trade an automobile which he then owned for land in Oklahoma, and requested a conference with him, and later Starrett orally offered to exchange a quarter section near Monroe; said that he owned a quarter near that town and that defendant Wharton stood ready to purchase it for $1600 cash; that upon the plaintiff’s
A demurrer to this pleading was overruled, and Starrett answered by a general denial expressly disclaiming any authority for any acts or statements made by Wharton and alleging that the plaintiff had expressed satisfaction with the exchange of property, which was made after an independent investigation of the facts by him and upon advice of counsel. Wharton made default. The motion to strike out certain portions of this answer was overruled and a reply by way of general denial was filed. A trial was had, a demurrer to the evidence overruled, likewise a motion to instruct a verdict for defendant Starrett, and after the latter had introduced a part of the' testimony of one witness the court reconsidered and sustained the demurrer to the plaintiff’s evidence. Within three days thereafter the plaintiff moved for a new trial and to set aside the order sustaining a demurrer, which motion was taken under advisement until the next term and then sustained. From this order defendant Starrett appeals. In plaintiff’s motion attacking the answer he asked that the allegation that he had not tendered a conveyance to the defendant be stricken out for the reason that it was not a matter of defense or responsive to any issue in the case, “this being an action in which plaintiff’s amended petition shows that he has elected to affirm the exchange for the land-in question and sues
It is contended that the plaintiff’s pleadings were so indefinite that his theory of 'the case could not be determined therefrom; that they contained no allegation of the value of the land if it had been as represented, and therefore no basis for proof of the proper measure of damages; that no such proof was offered; that if the claim be against Starrett for Wharton’s failure to pay, the record does not disclose Wharton’s insolvency or Starrett’s knowledge thereof, and that the demurrer to the evidence having been sustained and the action dismissed at the January term the court could not at the April term grant a new trial and reinstate the action.
Whatever confusion or uncertainty may be shown in the second amended petition, we have no difficulty in holding that it stated a cause of action, for if the plaintiff’s allegations be taken as true certainly the defendants were liable to him in some amount.
Counsel argue that it was essential to state what the land would have been worth if as represented, while the plaintiff contends that as both defendants represented that it was worth, and Wharton stood ready to pay at once, $1600 cash, which was the sum asked for the machine, and which both defendants pretended the plaintiff would receive therefor by the operation of buying this land from Starrett and at once conveying it to Wharton, all he need do is to show how much less than $1600 it was in fact worth. We agree with the latter contention. The evidence disclosed that the land was not worth much above $1.50 an acre, that it was not even owned by Starrett, or desired by Wharton who had no intention of taking it. From so much of the evidence as appears in the record presented, one would have to be blind not to see that the defendants cooperated in a fraudulent • scheme whereby they procured the plaintiff’s car, and it would serve no purpose
' While the quoted words used in the motion of plaintiff to strike out a certain allegation of the answer taken alone might bear the literal interpretation contended for by opposing counsel, still, when considered together with the allegations -and prayer of the second amended petition, we think it was not intended as an election to proceed for the recovery of the difference between the real and the represented value of the land, but as an assertion that the action was not for rescission. A motion, not an election, was the matter at hand, and the former should not be construed into the
The point is pressed that Wharton’s insolvency was not proved. The record is illuminated, however, with his own explanation of his financial condition, which is quite sufficient to convince one that a judgment against him would not add materially to the assets of its holder. Aside from this, his present desire, intention and ability to take the land for the price of the car were assiduously pressed upon the plaintiff by Starrett, who knew full well that at least no such desire or intention existed, and the mere matter of financial ability was only one element of the false pretense deliberately and successfully made.
It is insisted that the plaintiff swore, on cross-examination, that but for Starrett’s assurance when returning from McCracken that Wharton was good and would pay he would not have made the trade, and hence that he could not have relied on the statements as to the value and character of the land. We do not think that this meant or was intended to mean that he was uninfluenced by the former representations — only that this last assurance, like the pleadings of the importunate widow, removed all further-hesitation.
That a motion for a new trial filed at one term may be taken under advisement and granted at the succeeding term was decided in Life Ins. Co. v. Twining, 19 Kan. 349. The trial court, upon reconsideration, concluded that the plaintiff’s claim was supported by some evidence, and that the demurrer thereto had been improperly sustained, in which conclusion we find no error.
The defendapt is justified in complaining that the plaintiff’s pleadings were more fertile in prolixity than in perspicuity, but we hardly think the remarkable ability shown in the numerous attacks and attempts to require clearness of theory and fixity of position demands the entire defeat of the plaintiff.
The order granting a new trial is affirmed.