80 Kan. 22 | Kan. | 1909
The opinion of the court was delivered by
In this action plaintiff sought to recover $200 from defendants as cash rent for the use of a house in accordance with the terms of a lease to which defendants’ names were signed. The defendants answered admitting the signing of the lease but alleging that they orally agreed with plaintiff’s agent to lease plaintiff’s farm for a year and pay as rent two-
It is contended that if parties who sign an .instrument can read they will not be heard to say that they did not read or know the contents of the writing, unless they were dissuaded from reading it by some fraudulent act, artifice or trick. Was there no fraud, artifice or trick in the act of plaintiff’s agent in telling the defendants that the long, complicated writing of about seven printed pages contained only the provisions requiring them to pay two-fifths of the grain and $60 in cash, when he had placed in the body of the lease a..provision requiring them to pay $200 that had not been mentioned in the oral negotiations ? Was there no fraud, artifice or trick in lulling inquiry as to the contents of such a writing by falsely and fraudulently representing that it contained only certain specific things, when there had been inserted another stipula
Complaint is made of the instructions of- the court in regard to the degree of proof required to establish fraud. Several of the instructions touched on the question, and in the tenth instruction the court charged that “fraud is never presumed, and the burden is upon the defendants, as heretofore instructed, to prove by a preponderance of the evidence the fraud by them alleged in their amended answer.” It is sometimes said that proof of fraud must be clear and convincing, or strong and satisfactory, but this is no more than a preponderance, and that is all that the law requires. Courts sometimes disapprove of instructions which minimize the quantity of evidence necessary to. repel the presumption of innocence and establish fraud (Insurance Co. v. Rammelsberg, 58 Kan. 531), but a preponderance which satisfactorily establishes the fraud meets the requirements of the law. The trial court recognized the rule that fraud must be well established when it told the jury that the preponderance referred to in the instructions did not mean “the mere
Aside from this consideration the plaintiff is not in a position to complain of the charge on this ground. The instructions requested by plaintiff in regard to the degree of proof necessary to establish fraud only required the defendants to prove it “by a preponderance of the evidence,” without any qualifying or strengthening language. The instructions given by the court on this phase of the case were as- strong as those requested.
The judgment of the district court is affirmed.