DaLee v. Blackburn , 11 Kan. 190 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

This was an action between Priscilla Blackburn and John Blackburn, as plaintiffs, and Amon Gr. DaLee as defendant. DaLee, as plaintiff in error, brings the case to this court. The judgment below was in favor of Priscilla Blackburn alone and against DaLee. No judgment was rendered in favor of John Blackburn. Hence any ruling of the court below which was merely too favorable to John Blackburn, or which could not have affected the judgment rendered between Priscilla Blackburn and DaLee cannot be considered as material on this petition in error. The errors complained of are as follows:

First: Plaintiff John Blackburn was examined as a witness on the part of the plaintiffs below, and on his cross-examination by the defendant below was asked the following question: “Did you not tell Mr. H. C. Schell that you wanted him to help you get this thing?” (meaning DaLee’s interest in the Lawrence Roller-Plow Company.) Plaintiffs objected to this question on the ground of incompetency. The objection was sustained, and defendant excepted. This ruling was correct. The question was incompetent on cross-examination, for no part of any such a conversation as this question would have elicited had been given on the examination in chief. It was not competent as laying the foundation for an impeachment of Blackburn’s testimony, as no time, or place, was suggested when or where this supposed conversation occurred. It did not tend to show bias or prejudice, nor come under any of the other rules of cross-examination. And of course the defendant had nd right at this time, except by consent of the parties, and permission of the court, to make Blackburn his own witness, and then introduce original evidence from this witness for the purpose of proving his own side of the case. (Code, §275; Laws of 1872, page 329.) And if the defendant had made Blackburn his own witness, the question might then have been ruled out as leading. Besides, if the evidence had been admitted, how could it have affected the verdict and judgment in favor of Priscilla Blackburn, unless it had also been shown that Blackburn was the agent of Priscilla Blackburn for this particular purpose? Was this shown?

Second: That portion of the testimony of the witness Schell quoted in the brief of plaintiff in error which was excluded by the court was properly excluded because it was not the statement of any fact, nor the statement of any conversation, but was merely conclusions of the witness drawn from facts and conversations. And these conclusions were not drawn from any conversation had with Priscilla Blackburn, or from any conversation authorized by her. Blackburn may have been her agent for all purposes, but the evidence does not show it. It is true he signed her name to one of the instruments in writing for her, but was he an agent of hers further than this, or for any other purpose ? It does not seem from the record that Priscilla Blackburn ever authorized John Blackburn to either trade or talk for hex’, but on the contrary it would seem that she did her own trading and talking, and that the defendant well knew this fact. If this evidence had been competent at the time it was offered as against either of the plaintiffs it should have then' been admitted, and it would have been error to exclude it. But if it was competent as against John Blackburn alone it must now be treated as immaterial. But as we have already stated, we think the evidence was wholly incompetent as against either of the plaintiffs. Schell was the witness of the defendant, and this was a part of the defendant’s evidence in chief.

Third: The plaintiff in error complains of the refusal of the court to give a certain instruction. The record does not purport to contain all the instructions, and therefore for reasons often given by this court in other cases we cannot consider the one refused.

Fourth: The plaintiff in error also complains of the refusal of the court to grant a new trial; and here we shall examine the supposed errors in charging the jury, the supposed error in refusing to-set aside the verdict and grant a new trial, and the supposed error in rendering judgment in favor of Priscilla Blackburn. The court charged the jury among other things the following:

“If the jury believe from the evidence that the Black-burns were induced to purchase A. G. DaLee’s interest in the Lawrence Roller-Plow Company, by reason of the representations made by said DaLee, and if *the jury believe the representations were false, they must find for the plaintiffs.

“It makes no difference whether A. G. DaLee knew these representations to be false, or not. It is sufficient that they were false.

“The Blackburns had a right to rely upon DaLee’s statements as to existing facts, without making inquiry of others as to their truth.”

The jury found a general verdict in words as follows: “We the jury find for the plaintiff, and assess her damages at $1,500.” The jury also made special findings, among which are the following:

“Q.-Did DaLee make any statements to the Blackburns, or either of them, which were known to be untrue or false by DaLee when he made them, or at any time before the contract was concluded, or before Blackburn entered upon the active participation in the business of the company?” A«s.-“No.”

“Q-If DaLee in his negotiations with Blackburn made any statements which were untrue, were such statements made fraudulently by DaLee, and with the intent to defraud the Blackburns, or either of them?” Answer, “No.”

According to the evidence DaLee made substantially the same statements and no more to Priscilla Blackburn that he did to John Blackburn. The defendant DaLee moved the court for a new trial upon various grounds, but the court overruled the motion and rendered judgment in favor of Priscilla Blackburn and against DaLee for $1,500. In all this we think there was error. The charge of the court, the findings of the jury, and the judgment of the court were all based upon the erroneous theory that a party may make himself liable to an action at law for damages by innocently, and in good faith making statements which are in fact not true. Now this is not an action in the nature of a suit in equity, nor is it an action on a warranty. It is purely an action at law, as contradistinguished from a suit in equity, and it is purely an action of tort for deceit and fraud, as contradistinguished from an action on contract for breach of a warranty. Nothing of an equitable nature is claimed, or if remotely claimed in the petition below, it was wholly abandoned at the trial; and there has been no pretense, even, that DaLee ever made any warranty with regard to the property which has not been fulfilled. The record shows that the plaintiffs purchased (by a written contract) from DaLee a one-fourth interest in the Lawrence Roller-Plow Company, and paid therefor $800 cash down, and promissory notes (which have not yet been paid,) one for $200, and the other for $1,500, the last secured by a mortgage. The Lawrence Roller-Plow Company owned at the time of the purchase the patent-right for Johnson’s Patent Roller-Plow, and also owned a small amount of other property worth over debts about $800. This property, including DaLee’s interest in said company, was all transferred and assigned to the plaintiffs by an instrument in writing duly executed by DaLee. DaLee made some statements pending the negotiations with regard to the patent roller-plow, and the assets of the company, which were not true. But under the charge of the court and the findings of the jury these statements must now be considered as having been innocently and honestly made, although we should think from the evidence that the jury must have exercised a considerable amount of charity toward DaLee in making findings of innocence or honesty in his favor. Soon after the sale and purchase the patent-right was found to be almost wholly worthless, and the company became insolvent. But the plaintiffs still retained their interest in the company, and in the patent-right, never offering to rescind the contract, or to return anything that they had received from DaLee. The plaintiffs then commenced this action for damages. And in the action they do not ask to have the contract of sale rescinded, nor do they offer to return anything which they received from DaLee. Neither do they ask to have the notes and mortgage (which are not yet paid) returned and cancelled, and they still retain their interest in the Lawrence Boiler-Plow Company, and in Johnson’s Patent Boiler-Plow. They in fact affirm the contract of sale, and then claim damages under it. 'Under these circumstances we think this action must be governed by the rules of law which govern actions for fraud and deceit in effecting sales. Hence, if there was no deceit or fraud, no moral turpitude or obliquity on the part of DaLee in effecting the sale, the plaintiffs cannot recover. We know of no exception to this rule, and we know of no decision that has ever expressed a different doctrine. (Chandelor v. Lopus, 1 Smith’s Leading Cases, 238, and cases cited in Hare and Wallace’s notes.) We know that courts of equity in granting equitable relief go much further. Equitable relief may often be granted for purely innocent mistakes. But relief can never be granted in such cases as this, where the relief asked is of .a purely legal character. Now if all the other necessary facts were shown, then, if DaLee committed any fraud in making said statements, he was certainly liable for the- fraud. And if he made the statements, knowing or believing them to be false, for the purpose of effecting the sale, and did thereby effect the sale, he certainly committed a fraud. Or even if he made the statements as though he knew or believed them to be true, while in fact he had no knowledge or belief upon the subject, he was equally guilty of committing a fraud. And there are many other ways in which a fraud could have been committed, and in which DaLee could have made himself liable. But if he committed no fraud he is certainly not liable in this action.

With regard to the sufficiency of the motion for a new trial we would say, where a motion for a new trial has been made by the defendant upon the ground (among others) alleged as follows, “For error of law occurring at the trial and excepted to by the defendant,” all rulings of the court made during the trial, and excepted to at the time they were made by the defendant, should be again considered by the court.

The judgment of the court below is reversed, and cause remanded for a new trial.

All the Justices concurring.