*1 1923. APRIL TERM, O’Mаlley. McCaw long enough it and is, as is The instruction Marts. w;ould appellant it to objection extend the meet of more length obscure instead greater it more and make necessary find. what it was in its statement clear strictly logically Grammatically correct and it is and jury. mislead could'not
Finding af- is in the record no error All concur. firmed. Appellant, F. O’MALLEY.
H. R. v. WM. McCAW, April 9, Two, 1923. Division LAND: Rescission: Failure CONTRACT FOR PURCHASE OF farm, Obligations: purchaser a who Perforin Substitution. The agreed by deliver a to execute and “bank- written contract has convey price purchase and to able” note for the balance of the obligations by lot, an oral those seller a certain cannot evade by supply permitting himself note executed him to modification the Statute of The contract was within solvent sureties. writing, required cannot and its terms be Frauds and to be in by agreement, by parol, cannot oral eked out nor modified ground that seller on the sole have the contract rescinded orally perform modified. as had failed to the contract Representations: Reliance. In a suit Fraud: -: False -: representations, the burden false a contract fraud to rescind by proof alleges there fraud to establish him who it, only representation, that he relied on but a false prudence, ordinary and that such was an act of reliance prudently him his representatiоns influenced relied thus ordinary prudence damage. for full are sufficient care and Where pur- duty protection, use Where the to make of them. it ordinary facts, may know them knows the a farm chaser of judg- opinions prudence, act on his own must his own form reviewed, and it is held in this case are And the facts ment. force, emptor applies full doctrine of caveat representations as to the was not the vendee deceived by jitney-driver, made, or not he whether land value agent. vendor’s Representa- Representations to Value. -: False -:3. fraud, particular- ordinarily constitute to. value do tions opportunity to unrestricted ly land had the vendeе of where so Mo.—26 SUPREME COURT OF MISSOURI. himself, position, ascertain the facts for and was in better be- experience, cause of than to know the value of representations. were those who made the *2 Representations 4. -: -: toas Cost. The mere statement regarded the vendor of the him of not to he cost to the farm is representation upon rely, as a which the vendee can where the opportunity actually vendee has an to unrestricted undertakes ascertain its actual value. Representations exag- Quality.
5. -:-: as to Likewise mere gerations qualities, as to such as to number of acres of bottom farm, grounds land a do not an action for constitute for deceit part vendee, particularly they on the of the so are mere where expressions opinion parties equal opportunities of and both have knowing for the fact. Utilizing Ignorance: 6. -:-: Vendor’s Clean Hands. Where vendee, according believing testimony, jitney- to his own a working him, willingly accepted upon driver was and acted driver’s statement vendor “didn’t know the worth by taking figure, agreed finally land” it at a named ' upon, getting great bargain, he was it at a he should not he heard falsely complain represented Being that the vendor its value. willing apparent advantage vendor, utilize over he does equity not into come with clean hands. Discovery Aсquiescence: 7. -: -: of Fraud: Waiver. The right ground rescind a contract on of fraud must he exer- discovery fraud, upon discovery by cised such of party put upon upon the defrauded he is his election to stand time, by continuing contract rescind or it within reasonable vendee, to treat the contract as valid waives the fraud. A who purchases contract, upon land written moves it and continues occupy doing, discovering shortage it and while so and after representations complained of, the other acres and false offers mortgage due, a note and for the balance cannot have said con- ground on the tract rescinded fraud. Appеal Phelps from Circuit Court. —lion. L. B. Wood- Judge.
side, (with AND REVERSED' REMANDED . directions) appellant. Lorts é Breuer and Frank H. Farris (1) A to an if be seller is liable action deceit fraudulently represents quality thing tbe of tbe sold to 1923. APRIL TERM, 298]' Vol. o (cid:127)CO O'Malley. McCaw v. buyer equal means if the has is, other than it be the knowing, if so the seller did seller of or inquiry in- buyer or not to make manner as induce the vestigation, for his done, have which he would otherwise Ed.) security. Story’s Equity pp. (11 213. The own the clearest contract without court will proof rescind the they misrepresentations, of the fraudulent that the show were made under such circumstances n contract (11 Story’s Equity them. was founded p. purpose >Ed.) equity not sit for do Courts parties relieving reаsonable who refuse to exercise a Ed.) (11 p. Story’s Equity diligence of discretion. gross (2) puffing such as commendation, The mere or reprehen- exaggeration departure while truth, will avoid sible in are frauds which not treated as morals, is bound *3 contracts. In such the other cases, open equally is matter exercise his own if the 1 of both. and to the examination skill observation, (3) Story’s (11 pp. Equity Ed.) 215. The claim 214, by guilty appellant fraud state- of of being quality its as to land, made to the of the ments as such land of acres of bottom the number land, and question mis- is that is not fraud. The rule the farm ground, representations quality to work a to the thereof, a statement of a must be contract, rescission expression opinion, mere material, not the which rely upon purchaser and be the statement must and pur- things which it must be about and deceived, by ordinary unless observation, chaser cannot discover purchaser prevented from dis- artifice, seller, inspection, covering 39 of an the true facts means Cyc. Weatherman, Clinkenbeard v. 371; R. L.C. 27 1268; (4) 326. Re- 215 Mo. Walker, Judd 112; Mo. 1.c. v. 157 appellant complains statements spondent made also land, of the the value were untrue which If his be rescinded. should reason, the contract would not evidence, it contention were sustained A as to statement cancel his contract. be sufficient the opin- property generally matter of of the value by both it is so understood assumed that and it is ion, 404' SUPREME COURT OF MISSOURI.
parties
Cyc.
to tire
39
transaction.
27 C.
1270, 1271; R..
L. 377; Stonemets v.
248
Head,
267;
Mo.
Parker v. Moul-
Rep.
O’Malley
14
looking
ton, Mass.
19 Am.
315.
investigating
over and
the character and value of the
by personal
purchase,
farm
visit and examination before
thereby informing
lay
himself as to the
value
rely
representations
did not
farm,
but
others,
acted
independent judgment,
on his own
therefore,
he can-
bargain proves unsatisfactory
not have relief because his
Younger Hoge,
to him.
such a note as negotiate first will be able to to the bank for its face par- value without recourse on said first ty.” “A bankable note is one receivable as cash a bank, and a buy that banks will note is not bankable, re- gardless refusing buy, the bank’s reasons for or the high paper.” character of the 1 (2 Words and Phrases Ser.) 398; Pasha v. 122 Ami. Bohart, Pac. 284; 76 Cas. “Solvency” 1913 generally .C, 1250. is understood to person mean pay that a they is able to his debts as mature. The term is importing used too, sense property adequate satisfy obligations one’s when sоld under execution. Yandeventer v. 116 Goss, Mo. 316. App.
J. Grites, J. W. D. Jones W. L. Iliett for re- spondent.
(1)
repre
The owner of
is bound
agent
sentations
extent
as to
and value and the
price paid
Keithley,
for the same. Laird
201
v.
S. W.
1143; Garretzen
Mo.
Duenckel,
104;
v.
50'
Chase v. Rusk,
App.
(2)
representations
<90
False
of the value of
upon by
purchaser,
when
land
relied
are statements
1
expressions
opinion.
purchaser
of fact and not
The
right
rely
they
has a
on the same and
are actionable.
223
Sette,
Yodicka v.
'578;
S. W.
Stonemets v.
248
Head,
Keithley, 201
Mo.-263; Laird v.
1142;
S. W.
Judd v.
323;
Mo.
Walters, 215
Cottrill v. Crum,
REEVES, estate. damages alleged for an of
Plaintiff sued for breach by invoking defendant answered said and contract, grounds plaintiff’s equity on the of al- rescission, for perform procure- leged and for fraud in its failure to prevailed ment. Defendant had a decree in below, prayer. with accordance plaintiff appealed
After conventional motions, has sundry averring chief of which is court, errors, this that party. wrong for decree is con- The sued on is as follows: tract agreed by party “It H. R. between
. McCaw, part, O’Malley, party the first William of of part, party that said first second has sold and second bought following party Phelps real desсribed estate County, as half described the east of the south- Missouri, quarter twenty-six, of section west north-west the east half
quarter thirty-five, township of section all in range thirty-seven, eight containing acres, for west, price agrees party and sum $12,500 which second pay receipt party the first cash as follows: $500 hereby acknowledged, paid which be within $3000 party two date, weeks further to second assume agree pay part consideration thereof a against of trust deed said lands accrued $2500 purchase price thereon, by interest the balance paid good given be and bankable note second party being party such a note first be will able SUPREME COURT OF MISSOURI.
n negotiаte to tlie bank its face without re- value party. agreed on said first It is course further party wagon, is to have second drill and wheat corn planted, payment on farm now without further therefor. agreed possession It is further be shall delivered party to second within two or as soon weeks thereafter- possible. agreed legally wards as It is further party convey party first by shall to said second said lands warranty good compliance and sufficient deed party with second the terms of this contract. agreed convey “It is further second shall *7 quarter ground to sufficient one first deed acre of agreed Piney near River heretofore to. day
“Witness our hands this 23rd March, “H. R. McCaw, O’Malley. F. “W. “S. N. Witness.” Lorts, petition alleged delivery
The the due execution and compliance by ap- of said contract and full therewith pellant, according that to and the .terms thereof five hun- paid by respondent, dred its dollars at execution payment and in that lieu of the cash of throe thousand dollars a bankable-note for was executed $3000 re- spondent, appellant, upon appel- and to delivered which twenty-seven sixty lant obtained hundred and dollars, agreement with the that the discount of two hundred and forty to dollars should be added to note cover the contemplated by so that final note balance, con- sixty-seven be forty should for tract hundred and dollars; respondent possession that into went estate, said real carry provisions but to has refused out the and terms by executing delivering appellant of said contract and to appellant bankable note for for $6740, which amount prayed judgment. alleged respond- It further that agreed appellant convey parcel ent had to to a small ground (one-quarter acre) Piney near River, and appellant prayed judgment convey failure so Appellant the further sum of one hundred dollars. premises, averred that had tendered deed to said petition. in this tender renewed TEEM, APEIL Eespondent’s answer admitted the and de- execution livery payment of the contract sued and the of five delivery execution hundred dollars; three of the appellant’s petition, thousand dollar note mentioned in having given admitted said note been in lieu of respondent agreed expense cash, had hear agreed discount sum $240, that it had been being equivalent year’s said discount, of one in- eight per at terest cent, should be added to the note to purchase balance, cover price, making sixty-seven forty balance hundred and dollars. respondent
For his affirmative defense, said appellant represent- had tendered a note for $6740, ing the appel- balance aforesaid, had demanded of lant a deed-to said real estate, accordance with said appellant neglected but that contract, failed, and refused accept said note in final settlement of the full consider- moving appellant, ation and had refused to deliver to respondent premises, required a deed to said contract.
Eespondent plain- averred the conduct of the failing refusing accept tiff in the note to cover purchase price, the balance of the and his failure to make, ' execute premises and deliver to a deed to said prevented had carrying part out his *8 ground prayed and that contract, he the court for rescission. respondent
For another charged affirmative defense, purchase in the premises, fraud and sale of said follows: respondent unacquainted
That wholly the was Phelps the County, value of farm lands in Missouri; King agent that one appellant, Fred was the of and that respondent duly King appellant informed both of ignorance his Phelps County; of farm land values in that he had the utmost confidence in the truthfulness integrity appellant and the of both the and the said Fred King, having acquainted been with the latter since his boyhood appellant and had many also known the for years; appellant agent, that the King, his “for the SUPREME COURT OF MISSOURI.
McCaw v. purchase inducing farm, purposе said the defendant of farm represented that said to the defendant and stated hundred of twelve thousand five was worth the sum well paid plaintiff when farm, for said the dollars; purchased thousand five of the sum eleven the same, in the fence enclosed all hundred the lands dollars; belonged plaintiff; farm had that said on said farm eighty that the in cultivation; of bottom land on acres it plaintiff King agent in the of said Fred was not selling to receive no commission and was farm, of said plaintiff, farm was sold in the event the said solely acting Fred that the defendant; said friendship on account of (cid:127)in behalf of the defendant said statements defendant;” that he relied on for the thereby be and thаt he was true, and believed them to appellant’s execute the contract set out induced falsity petition. each There were averments of prayer allegations for a rescission and all of these judgment against appellant for of the contract and for .payments' should be a lien on and that same made, land in suit. replication put up in the matter set
The issue all respondent’s answer.
Upon respondent a trial had a decree for a rescis- thirty- judgment a further contract, sion of representing sixty moneys dollars, two hundred per respondent, paid by .from with interest at six cent day April, 1920. In turn the the 15th adjudged premises, growing pay for the use said possession, thirty per the sum of month out dollars April ,from to be the latter credited 15, 1920, adjudged in relation on the former. The court further twenty-five mortgage hundred dollars men- ap- in the that either contract, tioned right pay discharge pellant have the off and should obligation, principal and interest, both paid, payments when should stand as a valid lien property. against said part respondents
The evidence showed *9 respondent purchase at the time he contracted the APEIL TEEM,
McCaw County, about in Texas Missouri, resided farm, said Phelps County had and that he from the line, three miles years; many farm in contro- the there for that lived versy Eolia had four from that Eolia; was about miles respondent point; trading that he used been ‘‘going or twicе a in habit once been Eolia bad year maybe year;” a dozen times a that and sometimes lay in mile suit about one-fourth of a the land respond- going that in to Eolia; road used occupation prac- pursued had this ent farmer and was a adjoins County, county tically in his life Texas which all Phelps County; bot- that the difference between he knew hill was familiar with land con- land, tom land County, that “not fa- of Texas but said he was ditions part.” generally in values miliar with farm day evening the 22nd of March, 1920, On contract was came executed, before inquiries evening he made on where Eolia, day buy a where I could another, “from first one' and place place; run a what I little I wanted, little jitney about this a who I had told to find out driver, on to place. place bought, my Mr. after he sold jitney McCaw, . . The driver directed me . days bought place that; had a before that McCaw few night him if he the street that and asked met McCaw I . . he to. . the farm and he said didn’t want sell would morning; in the that would me come down He told morning study I and asked went down next it; about up had made his mind and he said that he if he had him up one take less than his mind that he wouldn’t made an in were 160 acres acre, dollars there hundred 104 in cultivation 80 acres bottom. tract, any price of want it, was the didn’t $100 if that I I said pay I that; and that couldn’t and about land; an acre can took me off one side and said I time helpеd get place get you for less than that, I (Fred King myself) place so went McCaw, we place. from McCaw’s at the went and looked "We out respondent’s According testimony, King’s car.” ways place up on the on kind about middle “went *10 OE MISSOURI. COURT SUPREME y. O’Malley.
McCaw inquired high King and there lie whether all knoll/’ pointed there out to the land him was McCaw’s, all land told that inside of was the fence Mc- was trip King urged buy Caw’s; that on the return him to . n that “it is worth farm; $13,000;” “that McCaw n didn’tknow the respond- worth of land,” and that if opportunity bargain. ent lost he would lose a He go “I then said that I would testified, back and at look place again.” King Thereafter went n out King look to at another and on their farm, return respondent concerning appellant’s said to farm, “Now, you get you if the that for $12,500, had -better take it is it, bargain country,” upon suggestion in
best from place, that he did know value
as he had not looked it over, said, “You you telling leave that to me, I am I as friend. am not working working you.” Upon for I am McCaw, for their place respond- return McCaw’s at Rolla, business King, you say place ent “If worth the money, Thereupon negotiations I will take it.” further resulting with McCaw were had, in the contract in suit. testimony There was much as to the value of said land, testimony tending support and spondent’s allegations re- representations.
answer in the matter of express In the view we shall on the case, it is un- necessary to set in out detail in this statement further testimony. mаy pertinent Such additional facts seem will opinion. be noted and discussed the course of the Respondent
I. delivery admits the execution and pretend <ofthe contract on, sued but he does complied has respect the terms thereof with delivery execution of a “bankable note” purchasedorice, balance of the nor did he tender Rescission. one-quarter Piney deed acre River. He imposed by obligations, these to evade by con- seeks the averment the contract tract, was modified way permit supply him to a note executed sureties who himself and solvent. Under the were vary the he could not terms of this written con- law, APRIL TERM, y. way, allegations in that and these ti’act his answer timеly have been stricken out, motion, should in the absence of such court motion, the should have objection appellant’s tending testimony sustained convey such modification. The show contract was to real estate, Statutes Frauds, and within required writing, statute it to be in and its terms by parol. could not [Anderson eked out v. Hall, be *11 A Mo. 202 S. contract within the 307, 539.] W. Statute agreement. Frauds of cannot be an oral modified [Reigart Co., v. 217 Mo. l. c. 142, 166; Coal Warren v. Mfg. Mayor 161 Mo. Co., 112, 61 S. 644;W. McWilliams Drainage App. 204 v. Mo. District, l. c. 237, 252; Ives v. App. 140 Kimlin, Mo. l. c. 124 293, S. 302-3, 23;W. (Mo. App.) v. Auto Overland Co., Walker 191 S. W. 1061.] objections timely
Plaintiff made to the introduction testimony tending vary of of terms said contract, disposes in he been should have sustained. This respondent’s of contention that there should be a re- plain- scission of said contract, because of the failure of perform, complaint particular only tiff to as his in that plaintiff carry is that had refused to out the contract, parol. as modified postulate charge
II. As a to a of the discussion may repre- we 'fraud, that in an observe action for false upon plaintiff (defendant sentations, burden is herein) by proof to establish there only representation, a false but that Representation False upon it and that relied such reliance ordinary prudence,” repre and that such “was an act prudently plain thus influenced sentations relied damage. App. [Brown v. Railroad, tiff to his Mo. 187 Funding Foundry l. & Co. v. 109; c. 125 104, Heskett, App. l. c. v. 57 Mo. 516, 530-1; Kem, Mo. Wannell 478.] ordinary foregoing
It that “where follows protection, prudence are sufficient for full' it care and duty use of them. Therefore, make representations regarding matters of if are made false (cid:127)414 COURT OP MISSOURI. SUPREME y. O’Malley. equally knowledge are and the means of at fact, hand party, parties, re to both and the instead available sorting sees fit to trust himself them, the hands gen it is to mislead him, law, one whose interest placed by own leave has been his eral, will him where imprudent supra; [Brown confidence.” 1 Railroad, v. (3 Cooley Ed.) 124 Mo. on Torts Lewis v. Land 570; Co., Wright, App. 687; 623; l. c. Mo. 672, Bradford 145 App. Dаvis v. Ins. Co., 266.] Mo. may
Where vendee knows the know facts, prudence, ordinary them the exercise of he must opinions judgment. form own and act on own [Funding Fdry. App. & Co. v. Mo. l. Heskett, Railway, 125 253; Hunt, c. McFarland v. Mo. Bank 531; Anderson Mo. McPike, 293; 76 Mo. Cornwall v. Real Estate 150 Mo. 377.] equity-will
Neither law nor afford relief on the representation equal grou'd of false one with means imormation, [Hines who fails to resort to such means. Leighton, Royce, App. l. 722; c. Brauchman v. Langdon Green, Dunn v. *12 Bragg Packing 63 Mo. 205 Mo. White, 600.] respondent
In the instant was re case, farmer, siding adjoining county. appear in an It did not from testimony general that the character of farm lands vicinity respondent in the where resided different was controversy. approached appellant in from that He on subject having purchasing presumably said land, previous inquiries concerning made it, and determined negotiate Appellant in his mind for it. was not then in a mood to but another sell, evinced a interview disposition price to sell, and named a which then objectionable respondent, knowledge indicating some respondent’s part. any sugges of values on Without appellant, respondent King, jitney tion went with being to look driver, over the farm. He saw it, practical undoubtedly capable exercising farmer was jitney King, a better as to its value than accept not driver. He did the statement of as McCaw APRIL TERM, prudent any man in the same (cid:127)to its but did what value, personal upon doing, for a went insist situation would King1 represent inspection. testified did He pay King for his services, and that he did him, yet (King’s) complains him that told only respondent, relying interest King’s judgment, value, to its he entered into the as emptor question. The doctrine caveat contract applies vigor under such circum full force and pretend, It is under idle stances. by King, he was as deceived circumstances,'that agency. allegation III. The was deceived Representa land, as to the value of the is untenable. ordinarily tions as to the value do not constitute fraud. McPike, [Anderson v. 86 Mo. Union Nat. Value. Hunt, Wollard, Bank v. 76 Mo. Brownlow v. App. 124; Mining Co., Brown v. particularly 699.] S. W. And would thеre be no basis complainant," for an action for fraud where the as in case, opportunity had unrestricted to ascertain the himself, where, according facts, facts for to all the position, experience, he was in a far better because of his property, to know the value of the than those who made representations. respondent obtain relief because Neither can IV. regarding representations any him the cost made to appellant, fundamental that the for it is farm to mere statement the vendor of what an article Cost. regarded cost him would not be as a matter on which rely where, here, a vendee should the vendee had an opportunity unrestricted to learn the actual value of the where, here, actually undertook to *13 Seitz, App. 162, [Fisher ascertain such value. v. 172 Mo. 171.] l. c. vague testimony case was too in this Moreover, representations accuracy of such toas indefinite and made. if even cost, as to COURT OF MISSOURI. SUPREME charge acreage in the bottom was
V. The general misrepresented by appellant, falls within foregoing. exaggera- principles Mere announced grounds qualities do not constitute as to tions Qualities [U.S. for action in deceit. v. New South Farm Munger Bunch v. Securities 64; U. S. Co., & Home particularly App.) (Mo. 703.] And 211 S. W. opinion they expressions of are mere true Avhere knowledge, parties equal have means of so where and, right representations. rely is no to that there Langdon Holland [26 Green, 363; C. J. 38 Mo. McFarland v. Anderson, Carver, Bryan Hitchcock, Mo. For in all such 527.] neglect parties must not to use their cases, own Savings [Farmers discretion. Bank v. Trust Co., 199 Mo. 203 S. 491, 674.] W. testimony pointed
VI. The as to land under fence, appellant, yet belonging" out as the somebody to vague justify
else, was too and indefinite to relief. There were intimations that there was parcel ground belonging appellant Boundary Fenceas yet appeared under his it fence, but agreed appellant had that he should have every over one acre, a rebate and one-half $100 belonging appellant, ap- acres, the matter pears have ended at that. The testimony would not finding subject. support on that According testimony, respondent VII. own at working time when he believed that for him, accepted upon King’s willingly and acted statement “that McCaw didn’t know worth of the land,” CleanHands. by taking getting $12,500 and that it a he was bargain. great He apparently willing at a it advantage apparent over McCaw, utilize complain heard here, not.be is within should jurisprudence equity maxim effect “he who equity must come with into clean [Steg comes hands.” 131, l. c. Weeke, S. mann 134,] 214 W. *14 APRIL TERM, 417 not en- VIII. another reason, For of the contraсt sale titled to relief this case. After controversy premises in entered into, he moved onto the the time snit where he at remained during and, filed and the time of the trial all Discovery:Waiver: particularly prior filing of which to the Note the as a contract. the transaction treated he suit, following question and answer: you things you had learned these After
“Q. shortage other and the of land to about you have testified complained you offered of, have matters mortgage? A. sir.” Yes, note he is not entitled re circumstances, Under that, right elementary rescind a it is cover, ground on the of fraud must be exercised on the contract discovery [Taylor fraud. Short, of the Mo. l. с. 8 and Halderman, 596, 647, 9.] Co. v. Coal party- deceived treats the transac- moreover, If, discovery of the he waives fraud, contract after tion as a continuing to deal with the emanat- fraud [Taylor City Light supra; ing fraud. Short, from the App. Mo. Co., 83.] 156 S. v. Machine W. Co. (cid:127) discovery Upon by the a fraud defrauded upon put party election either to stand to his or to rescind when a seeks to re- it, contract grounds of fraud, on the do a contract must so scind unequivocally [Window and within a reasonable time. 318.] Co. Cornice foregoing, judg- it must From the follow wrong the learned chancellor below ment of was for the up appellant’s petition as the facts set party, and are the record he admitted is entitled to against purchase for the balance of the sixty-seven price, forty in the sum hundred and dol- lars. one-quarter conveyance acre on
Relative agreed ap- Piney River as “heretofore to,” for which damages pellant fixes his at $100, there was no testi- OF MISSOURI. COURT SUPREME Trimble. Ins. Hartford Life Co. ex rel. State item must treated mony thereof and this be to the value by appellant. as abandoned judgment
It is therefore ordered cause remanded and the reversed, below be chnacellor judgment in accordance with the enter with directions to alleged *15 petition, plaintiff’s prayer value save as Piney one-quarter acrе on River. Bailey concur. Davis, CG., It so ordered. is foregoing opinion PER CURIAM: The Reeves, adopted All of the is as the of the court. opinion C., judges concur.
THE ex STATE rel. HARTFORD INSURANCE LIFE
COMPANY v. H. TRIMBLE et al., FRANCIS Judges City Appeals, of Kansas Court of and JOHN Agent, BARTON PAYNE, etc. Two, April 9,
Division Subsequent SHIPMENT: Live Stock: Good Condition: Burden. In upon liability an action transporta- common-law for loss in tbe stock, proof delivery tion of live of tbe animals tbe carrier in good delivery by condition and of tbe carrier in bad condition prima-facie shipper, make a case for tbe wbicb casts tbe burden on tbe injury carrier to sbow tbat the loss or was caused tbe infirmity animals’ own vice or inherent and without fault on bis » part. 2. -: -: -: Necessary Instruction: Omission of Ele- ment: Direction for plaintiff Verdict. An telling instruction for jury duty tbat “it safely was tbe of tbe transport defendant to bogs controversy consignee and deliver them good to tbe condition, and before defendant can liability be relieved of damages bogs, for the death of proof said tbe. burden of greater weight defendant to show tbe testimony of tbe credible bogs tbat causes, died from natural to-wit, and inherent dis- lungs, ease tbe and unless shown, your the defendant has so plaintiff,” erroneous, verdict must be for require the.jury in tbat it fails to bogs good to find tbat the were in condition when defendant; delivered to and since said instruction directs a ver- plaintiff, notwithstanding dict for necessary tbe omission of said