The opinion of the court was delivered by
Horton, C. J.:
We have carefully examined the information and the evidence introduced to support its allegations. We think the information fatally defective and the evidence insufficient to sustain the conviction. The information attempted to charge Stub Crane and J. C. Gray with criminal *258conspiracy in obtaining from John Marquardt his promissory note for $150. The note is not copied in the information, nor is it stated whether it was negotiable or not. The inference from the allegations is that it was not negotiable, because it was payable “to J. C. Gray himself,” and not to order or bearer. (Gen. Stat. of 1889, ¶ 477; McCrum v. Corby, 11 Kas. 464.) It appears from the information that, in order to obtain the note for $150, Crane went to the residence of Marquardt on the 20th of February, 1893, and represented to him that he was the agent of F. H. Miller & Co. to sell and put up lightning rods, and that if Marquardt would purchase one he would put up a lightning rod on his house for 75 cents per foot for the excess of 100 feet of rod; that it would take 110 feet of rod for the house, and that the same would cost Marquardt $7.50 only; that Marquardt, at the instance of Crane, signed a contract in the rodding of his house which he thought bound him to pay $7.50. This contract was signed in duplicate, Marquardt retaining a copy. Soon after the lightning rod was put up by Crane, Marquardt ascertained he had signed a contract to pay $150, instead of $7.50. Gray, representing that he was the attorney of F. H. Miller & Co., offered to take the note of Marquardt in payment for the lightning rod, and informed him that if he had a defense to the claim he could present it against a note better than against the contract. He proposed to take the note of $150 in the name of F. H. Miller & Co., but actually took, the note to himself. It is not averred in the information that Marquardt was so illiterate as not to be able to read, or that he was blind, or was shown one paper and by trick induced to sign another. With full knowledge that the contract called for $150, and not $7.50, he executed the note complained of. If he could read writing, he knew he was executing the note to J. C. Gray, and not to F. H. Miller & Co. The only past or existing facts stated by either Crane or Gray to Marquardt were immaterial matters, and those were not “directly and specifically negatived.” (The State v. Palmer, 50 Kas. 322.) The matters represented by Crane and Gray to *259Marquardt to happen in the future were not false pretenses within the statute. A mere promise is not sufficient. (In re Snyder, 17 Kas. 542.) Marquardt testified that he could not say that “ he relied upon the statements made by J. C. Gray ” on the 21st of February, 1893, at the time he signed the note, “ because he had found out that he was a fraud.” He further testified that Gray said, “if I didn’t want to sign the note he was ready to leave;” that “the contract was more binding — no belief about it — more binding than the note, and I was fool enough to do what he said.”
A case very similar to this was decided by the supreme court of Missouri on November 9, 1893 — The State v. Cameron, 23 S. W. Rep. 767. In that case, the agent assured the owner of the house that the rodding would not amount to more than $5. The owner signed a contract obligating himself to pay $195. Instead of giving a note, as in this case, he paid $195, when he knew he had agreed to pay $5 only. Gantt, J., delivering the opinion, observed: “It is not the policy of the law to punish as a crime the making of every foolish or ill-considered agreement. If it is, the jails and prisons must be greatly enlarged. Where the pretense is absurd or irrational, or such as the party injured had at the very time the means of detecting at hand, it is not within the act.” The judgment is reversed, and the defendant discharged.
All the Justices concurring.