66 P. 1031 | Kan. | 1901
The opinion of the court was delivered by
The defendant in error had judgment in the court below and the plaintiffs in error bring the same here for review. The defendants were, •on the 30th of January, 1897, and had been for sev.eral years prior thereto, engaged in the banking business in the city of Hutchinson, running a private hank known as the Bank of James St. John & Oo. Plaintiff was a depositor, holding at that time its certificate of deposit in the sum of $1000, and also having on general deposit $224. On that date James St. John & Oo. sold out their bank, with the good-will and fixtures belonging thereto, to the Bank of Hutchinson, which, for a full consideration, undertook to pay all the depositors of the former bank, which issued a circular to all its depositors informing them that its business had been merged in the Bank of
Much contention exists between the attorneys of the respective parties as to the character, of the action set out in 'the petition — whether it is on contract or in tórt. The petition is much involved and inartificial, and from its reading much reason is found for either contention. We think that the better construction of it is that the action is upon contract for the recovery of the moneys which plaintiff had had on deposit with the bank of St. John & Co., and that, for the purpose of avoiding the effect of the novation which
For the purpose of this discussion, we think it makes no difference whether the action is one on contract or one in tort, for the fraud charged must be proved in either case. This fraud as charged was actual, and consisted in having actual knowledge of the insolvent condition of the Bank of Hutchinson, and, having this knowledge, in issuing the circulars referred to, for the purpose of inducing depositors to transfer their accounts to this insolvent concern. The court instructed the jury as follows :
“The jury are instructed that it is sufficient to con-, stitute actionable fraud, so far as the question of knowledge is concerned, if the person making the misrepresentations had no knowledge or belief upon the subject, and recklessly made them with intent to deceive, or, even if he made them, supposing them to be true, but had no reason therefor, and nevertheless made them as positively known facts, and thereby induced the person to whom they were made to act upon them to his damage.” 1
“It is necessary for the plaintiff to prove by the greater weight of evidence that the defendants knew, at the time of making any representations to plaintiff concerning the Bank of Hutchinson, that said Bank of Hutchinson was at the time insolvent.”
The court’s law, abstractly considered, was sound, but under the issues made by the pleadings was bad. Having pleaded actual and positive knowledge as the basis of fraud, the plaintiff'could not prevail by showing that defendants ought to have known but did not. This would constitute a'variance between the allegations and proof; or, perhaps, better stated, would be a failure to support by proof the fraud as charged. The defendants, at the close of plaintiff’s case, filed a demurrer to the evidence, which was overruled; the same question was thus presented as was presented by the instruction given and the one refused.
“An allegation that one made representations knowing them to be false is not supported by proof simply that he had no reasonable grounds for believing them true.” (McKown v. Furgason, 47 Iowa, 636; Avery, Spangler & Co. v. Chapman, 62 id. 184, 17 N. W. 454.)
“In an action for deceit, a declaration which alleges that the misrepresentations made were well known by the defendant to be untrue is not supported by proof simply that the defendant had reasonable cause to believe that they were untrue.” (Pearson v. Howe, 1 Allen [Mass.] 207; see, also, Marshall v. Fowler, 7 Hun, 237; Pom. Rem. & Reme. Rights, § 554.)
Indeed, this rule is generally recognized ; otherwise, as is said in Southwick v. First National Bank, 61 How. Pr. 164, pleadings would serve no useful purpose except to entrap and mislead the adversary. (Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698.) This principle has been generally recognized in this state.
Por the error indicated the case will be reversed and remanded for a new trial.