54 Kan. 436 | Kan. | 1894
The opinion of the court was delivered by
It appears that the trial court refused to permit the defendant below to offer any evidence in support of the allegations of his answer; upon the ground that the representations made to him by the vendor’s agents were expressions of opinion only, and further, that as the defendant was upon the premises before his purchase, he could have discovered, if he had been diligent, their falsity. The alleged false representations related to the quantity of the bottom land, the quantity of the land in corn, and to the rentals of the pasture land. Representations made by the seller of land of the quantity and the rentals thereof are something more than affirmations or expressions of opinion in regard to the property he is attempting to sell. They are matters lying peculiarly within his knowledge. (Davis v. Jenkins, 46 Kas. 19; Bowman v. Germy, 23 id. 306; Stevens v. Matthewson, 45 id. 594; Stewart v. Ranche Co., 128 U. S. 383; Paine v. Upton, 87 N. Y. 327; Belknap v. Sealey, 14 id. 144; Schumaker v. Mather, 133 id. 590; Nelson v. Carrington, 4 Munf. 332; Mitchell v. Zimmerman, 4 Tex. 75; Walling v. Kinnard, 10 id. 508; Antle v. Sexton, 27 N. E. Rep. 691; Hanson v. Tompkins, 27 Pac. Rep. 73; Dobell v. Stevens, 3 B. & C. 623, and Lysney v. Selby, 2 Ld. Raym. 1118; Sugd. Vend. [Perkins’s ed.] 248-378; Dimmock v. Hallett, 2 Ch. App. 21; Lord Brooke v. Rounthwaite, 5 Hare, 296.
“If Jenkins, the purchaser, relied upon the representations, as alleged, and was thereby deceived, to his injury, he may recover for the damages sustained, although he might have ascertained by a further search and inquiry that the statements made by Davis were untrue.”
False representations, to be actionable, must be as to a past or existing fact substantially or materially affecting the interests of the party, and relating to a matter as to which he may be presumed to confide, and is thereby in fact deceived. "Whether the defendant actually believed and relied upon the representations made to him, was a question of fact for the jury; and it was error for the court to decide, upon the allegations of the answer and the admissions made, that, as a matter of law, the representations were not actionable.
We are referred by the attorney of plaintiff below to Graffenstein v. Epstein, 23 Kas. 443, and Burns v. Mahannah, 39 id. 87, as supporting the judgment rendered. In those cases the misrepresentations concerned the market price of an article of general commerce. The market price was a matter of public knowledge. But in both of those cases it was observed, that “there were no circumstances making it the special duty of the seller to communicate the knowledge he possessed to the purchaser, and none giving him peculiar means of ascertaining the market price of the article sold.”
The judgment of the district court will be reversed, and the cause remanded for further proceedings.