84 Kan. 724 | Kan. | 1911
The opinion of the court was delivered by
Rose Morrow brought this action against P. D. Bonebrake to recover the sum of $420, which she had paid to him as the purchase price of a diamond, and obtained a judgment, from which he appeals. It appears that Rose Morrow, the appellee, wished to purchase a diamond as a present for her husband, and with that purpose in mind she had looked at one for sale by Armel Brothers, who were competitors of appellant, but had not yet made up her mind to purchase it. Bonebrake, learning that appellee was in the market for a diamond, proceeded to show her those he had in stock, none of which suited her. She told him of the stone at Armel Brothers, and he agreed to procure and sell her one equal in quality and one-fourth carat heavier for the same money asked by Armel Brothers for their diamond, it weighing one and three-fourths carats and being a pure white stone, perfectly cut, without flaw, and priced at $400. This arrangement seemed desirable to appellee, and the stone was procured, and after being examined by her she purchased and paid for it. Subsequently, upon making a comparison with the Armel stone, she found that the diamond purchased from Bonebrake was inferior in quality, whereupon she immediately returned it and demanded a return of the purchase price, which was refused.
Manifestly the special findings do not cover all the facts alleged and proven in the case. The general vérdict for appellee imports .a finding in her favor upon every material allegation in her petition and every issue in the case not inconsistent with the special findings. “When the special finding of facts is consistent [inconsistent] with the general verdict, the former controls the latter” (Civ. Code, § 294), but where a question of consistency arises nothing is presumed in aid of special findings, while every reasonable presumption is indulged in favor of the general verdict. The special finding that appellee inspected the diamond does not necessarily determine that she relied on her own inspection arid judgment. She stated, that she did not have the expert, knowledge necessary to determine the quality of diamonds and that she did rely on the representations and guaranty of appellant. Notwithstanding her own inspection she was at liberty to accept and rely on appellant’s representations, and if he induced her to buy the diamond the fact that she could “by a more thorough inspection and a searching inquiry have learned the falsity of the representations made by the seller” (Circle v. Potter, 83 Kan. 364, syl. ¶ 2) will not prevent a rescission and a recovery. (Speed v. Hollingsworth, 54 Kan 436.) She spent considerable time investigating the diamond,- but whether she finally acted on her own judgment or upon his representations was a question for the determination of the jury.
■ “Independent examination or investigation does not show conclusively that the party acted on his own knowledge or judgment, and not on a false representation made to him; and he is entitled to relief or redress if the circumstances and the nature of the subject matter were such that he could not learn the truth, or
It might have been, as the jury found, that she would not have purchased the diamond without examining it and still be true that she would not have bought it without the representations and assurance of appellant. It is immaterial that other considerations contributed to induce her to buy the diamond if the representations of appellant were material inducements to the purchase and were relied on by the appellant. (14 A. & E. Encycl. of L. 112.) According to the testimony the diamond was not as represented. Color, it seems, is an important characteristic of a diamond, and it was not as white as he guaranteed it to be. The jury were unable to say that it was of less value than the Armel diamond, but they did say, upon testimony that must be deemed sufficient, that it was not of the color and quality represented and that she did rely on his representations. He was a jeweler and an expert, and she lacked the special skill to properly judge a diamond and informed him at the time that she would rely on his statements and assurance. When she expressed a desire to have the stone compared with the Armel diamond he stated that he did not want that done; that he would guarantee that it was equal to that one and that it was a perfectly white stone. The fact that he had not seen the Armel diamond and did not have personal knowledge of its quality and color when the representations were made does not relieve him from liability. If he made a positive, statement which he did not know to be true, intending to influence the purchaser and induce a sale, and the representations were relied on and a sale thereby effected, his action is fraudulent and he is as answerable to the purchaser as if he made the representations knowing them to be
• The judgment is affirmed.