Linton v. Housh

4 Kan. 535 | Kan. | 1868

By the Court,

Kingman, C. J.

Four errors are assigned in this case, which we shall notice in their order.

1. That the verdict was returned in the absence of the plaintiff and his attorney, and in the recess of the court for dinner. There is no evidence of this in the record. The only place where it is mentioned is in the motion for a new trial. That is not evidence of 'the fact; it is only evidence that the motion was made, and the grounds which the party alleges existed why a new trial should be granted. It is no more evidence of the fact that the verdict was so received, than it is that the verdict was against the evidence.

2. The jury were allowed to separate, during the trial, without being first charged by the court. On this matter the record is silent, and the presumption is that the court discharged its duty in the premises.

3. The plaintiff in error was sued on a note. His defense, so far as the case here is concerned, was the fraud ulent representations of the defendant in error in the sale of a lot of corn, as to the market value, quantity, quality, and the manner in which it was cribbed. The record shows that, pending the negotiations for a sale of the corn, the seller referred the buyer to a third party as one who would give full information about the corn, and that the court below permitted evidence to be given to the jury of what was said to the buyer by such third party, after such reference, but refused to permit the buyer to prove the representations made prior to such reference.

This refusal to admit the representations made by this third party, before any reference is made to him, is complained of as error. The representations made by a third party, to whom reference is made for information on a particular subject, are generally evidence against the party making such reference. (4 Wend., 336.) This is not to be understood as making the third party the agent; but such reference being made for information, the representations made are to be deemed the representations of the party himself, and ought to bind the person making them only, when made after the reference, unless there be in the reference itself, some declaration covering previous representation.

A person may be very willing to abide by the representations made by a man who is thoroughly informed to-day, but would be wholly averse to bind himself by what the third party might have said yesterday, when ignorant or only partially informed of the facts. It is only from the time the reference is made that the party making the reference trusts the person referred to. Any trust reposed in those representations, made before the reference, is a trust reposed by the person seeking information. And if the information is incorrect, the person acts upon it at his peril.

The rule may, in this case, work hardly. It is the misfortune of all human things > to be imperfect; and we have often had occasion to observe that the application of old rules of law, to particular cases, often results in very great hardships. Still, all we have to do is to declare the law. Were we to settle the rule the other way in this case, it would open the door to the greatest injustice and oppression. It would, in many cases, bind a man by the statement of an ill-informed person, when his reference was only to one well informed. Break down the rule as we have stated it, and statements made years before, and forgotten, might be raised up to confront a man who had recently referred to the third party for information, knowing him to be well informed on the subject. We are aware that there is no such danger in this case ; but we deal, with rules, not with each case as it arises.

4. The fourth error assigned, is error in the judgment. The judgment is for $347.25, and costs of suit, taxed at $-. The error claimed is that, by the judgment, all the costs of the suit are awarded to the plaintiff, while he is entitled to receive only his own costs. It is admitted that the plaintiff recovers only his own costs, and that is all he gets under the law. The judgment for costs is in blank. When they are taxed, each officer and witness receives his own, and the plaintiff, who is responsible for such costs till they are made out of the defendant, is entitled to judgment therefor. When the costs are taxed, if any that are properly the costs of the defendant are awarded to the plaintiff, then the matter should, and undoubtedly would be, corrected by the court on motion.

The decision of the court below is affirmed.

All the justices.concurring.