National Bank v. Mackey

5 Kan. App. 437 | Kan. Ct. App. | 1897

Mahan, P. J.

There are, in fact, but two questions presented. The first is, does the answer allege facts sufficient to constitute a defense to the note in the hands of an indorsee ; and the second is, was there sufficient evidence to support the averment that the note was obtained through, false and fraudulent representations, to such an extent as to throw the burden upon the plaintiff of proving that, in fact, it was an indorsee for value. The note became due and payable on the twenty-third of February, 1894, and it was stipulated on the trial that the plaintiff took the note by indorsement on the twenty-sixth day of January, 1894, within thirty days prior to its maturity. It appears from the record that there had been litigation between the original parties, that is, the defendants in error and Thisler and Spillman, respecting the notes, or some of them, theretofore matured.

The principal contention of the plaintiff in error is, that false and fraudulent representations in such a case can be predicated only upon past events or present conditions and existing circumstances; and that the allegations of the answer disclosed only a breach of a covenant, or a contract, for which damages might be awarded, but did not amount to fraudulently obtaining the notes, — that is, that such a fraud could not be predicated upon a promise to do something in the future. This contention cannot be sustained. A representation or declaration of a present intention to do something in the future — as in this case, or of one party to marry another — made with a fraudulent intent for the purpose of inducing another to part with his property, sufficiently false and fraudulent to avoid a contract or afford ground for equitable relief.

The other contention is, that the evidence offered in behalf of the defendants is not sufficient to sustain the allegation that the promise was made with a fraudulent intent and without any intention of performance upon the part of Thisler and Spillman, and for that reason the demurrer to the evidence should have been sustained and the motion for a new trial allowed. This question of fact is one peculiarly within the province of the jury to decide. There is some evidence to sustain the findings.of the jury, and all of the evidence offered is uncontradicted and must be taken as absolutely true. The verdict is not unsupported by the evidence. There was sufficient to go to the jury upon the question and it was their province to determine the fact. The trial court approved the verdict, and we find no reason why it should be disturbed.

The judgment is affirmed.