295 P. 697 | Kan. | 1931
The opinion of the court was delivered by
In this action the plaintiff seeks to recover the balance of the purchase price of a telephone property located at .Osawatomie and one at Beagle. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
1. The defendant says:
, “1. The court erred in overruling appellant’s motion for judgment on the opening statement of counsel for appellee.
“2. The court erred in overruling appellant’s objection to the introduction of evidence.
“3. The court erred in overruling appellant’s demurrer to the evidence.”
In these three propositions the defendant presents but one question. That is the sufficiency of the petition, of the opening statement of counsel for the plaintiff, and of his evidence to establish a cause of action in his favor. The plaintiff owned a telephone exchange at Osawatomie and another at Beagle. He entered into a written contract with the defendant to sell to it the two telephone
The 'defendant relies on the rule excluding oral evidence to alter, vary, or change the terms of a written contract. The plaintiff relies on the rule that such evidence is admissible where fraud has been committed to secure the execution of the contract. The fraud which the plaintiff claims was in the representation that $3,000 additional would be paid for the properties if the new contract were signed because the defendant wanted its records to show that only $97,000 had been paid for these properties and that the $3,000 would be taken from what might be used to pay for other telephone properties. The consideration for the property purchased was to be $100,000. The manner in which the signature of the plaintiff was obtained to the second contract constituted a fraud on him practiced by the defendant if it did not intend to pay the $100,000 for the properties. That brought the plaintiff within the rule permitting evidence to explain the terms of a written contract.
2. Defendant argues that it was error to permit the plaintiff to introduce evidence to show fraud practiced by it for the reason that fraud had not been pleaded by the plaintiff. The plaintiff in his petition set out in detail the circumstances under which he was
The judgment is affirmed.