26 Kan. 111 | Kan. | 1881
The opinion of the court was delivered by
The question in this case arises on the ruling of the district court upon a demurrer filed to the petition.
That, at the time of the various transactions hereinafter set forth, the said defendant Orrin D. Lemert was, as the late •county treasurer of the county of Chautauqua, largely indebted for funds in his hands as such treasurer which it was his duty to pay over to his successor in office, and that he was in default as such treasurer, not having in his possession sufficient moneys'to cancel and liquidate such indebtedness; that, on the 18th day of November, 1880, and from that time until December 9, 1880, the said defendant Abner Lemert, who is the father of said Orrin, was, as shown by the records in the office of the register of deeds of said county, the owner of a •certain valuable eighty-acre tract of land lying within said county, worth about the sum of $4,000; that the said defendant Leroy Lemert, who is the brother of said Orrin, was however during the period aforesaid the real owner of said land, having in his possession a warranty deed of conveyance for said land, made and executed and delivered to him by said Abner Lemert (together with his wife), more than two years prior to the period aforesaid; that, on or about said 18th day of November, 1880, said Abner Lemert, Leroy Lemert and Orrin D. Lemert agreed together that, for the purpose of procuring funds to apply to the liquidation and satisfaction of the indebtedness aforesaid of the said Orrin D. Lemert, the said lands should be mortgaged for the sum of $1,000, and that said Abner Lemert should in his name endeavor to borrow said sum of $1,000, to be so. used and applied, the said Abner giving as security therefor his own promissory note, secured by mortgage upon said land; that, in pursuance of said understanding and agreement, on or about the 18th day of November, 1880, said Abner Lemert made application to Holloway & Osborn, loan agents, doing business at Sedan, in the county aforesaid, to borrow said sum of money upon the security aforesaid, and entered into an agreement in writing with them to take and accept such loan, and execute and deliver to them the security aforesaid, with terms as to interest and time of payment then and there agreed upon, provided said money should be furnished in compliance with said application within the period of fifteen days from the making thereof; and said Abner Lemert did also, upon the 22d day of November, 1880,
And plaintiff further avers that in all their acts and doings aforesaid, said defendants Leroy Lemert, Abner Lemert and
The petition also alleged that said Orrin D. Lemert is irresponsible.
Do the facts as thus stated show a cause of action against Abner and Leroy Lemert? Differing from the view of the learned judge of the district court, we are constrained to think that they do.. Stripped of all detail, the petition disclosed these facts: That A. was in pressing need of money to pay an urgent debt; that B., the father of A., was possessed of property; that they agreed together that B. should go through the form of applying to loan agents for a loan on said, property, and that upon the strength of that application, and the assurance that it would be perfected, A. should borrow money temporarily to be repaid out of that loan, and when the money thus sought had been obtained, the loan should be refused, and the party left to his single recourse against A. Thus by going through the form of application for a loan, B. gives credit to A., which otherwise he would not have. Perhaps no such representation is made as would subject B. to a criminal prosecution, but if he lends himself to this scheme on the part of A. to obtain money, he becomes civilly liable for the money thus obtained.
Three things may be laid down as essential and sufficient to sustain a charge like that in this petition: First, that a combination or conspiracy is entered upon for the purpose of obtaining money by representations or promises; second, that such representations or promises shall be knowingly untrue in
The judgment of the district court will therefore be re