26 Kan. 416 | Kan. | 1881
The opinion of the court was delivered by
This was an action on a promissory note, brought by Hargus and Sommers against Snyder. The defendant answered, setting up that the note was given for nursery stock which was shipped in the spring of 1876 by the plaintiffs, from Quincy, Illinois, to the defendant, in Doniphan county, Kansas; that by the agreement between the plaintiffs and defendant, the nursery stock was to be of particular kinds, of good quality, in good condition, and shipped in good condition, in box oars; but that in fact it was not of the quality agreed upon, was not in good condition, was not shipped in good condition, and was not shipped in box ears; but was shipped in open cars, and that it was wholly worthless and valueless when received by the defendant; that afterward, on the 26th day of August, 1876, the plaintiffs represented to the defendant that the nursery stock when shipped was of the quality agreed upon, and in the condition agreed upon, and that it was shipped in good condition, and in box cars, as agreed upon; but that the railroad company did not do its duty; that there had been an accident on the road, and that the nursery stock had been changed from box cars to open cars, and that the injury to the nursery stock which rendered it worthless and valueless had occurred while it was being shipped from Illinois to Kansas, and because of the fault of the railroad company, and that the defendant’s remedy was against the railroad company, and not against the plaintiffs; and the defendant, believing the plaintiffs, then gave them said promissory note; but that the representations made by the plaintiffs were wholly false; that the nursery
The plaintiffs demurred to this answer, on the ground that it did not state facts.sufficient to constitute a defense to the plaintiffs’ cause of action; and the court below sustained the demurrer, and rendered judgment in favor of the plaintiffs and against the defendant for the amount of the promissory note. The defendant then brought the case to this court.
The only question presented in this court is, whether the said answer of the defendant stated facts sufficient to constitute a defense to the plaintiffs’ cause of action. We think it did. If the answer of the. defendant stated the facts correctly, and the plaintiffs by their demurrer admit that it did, then there was no consideration for the promissory note. It seems strange that the defendant, after receiving the nursery stock in the spring, should not have been better informed on August 26, afterward • but still, as he was not informed, and gave his note ignorantly, and because of the false representations of the plaintiffs, we do not think that the plaintiffs have any just right to recover. That does not give them any right to recover something for nothing. (6 Wait’s Actions and Defenses, 567 to 579, and cases there cited.)
The judgment of the court below will be reversed, and cause remanded for further proceedings.
