Blankinship v. Porter
| Decision Date | 06 July 1935 |
| Docket Number | 32275. |
| Citation | 142 Kan. 284,47 P.2d 72 |
| Parties | BLANKINSHIP v. PORTER. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In action for fraud in obtaining title to plantation for inadequate consideration, evidence showing surrounding circumstances and contemporaneous oral agreements which were not contained in written document nor contradictory thereto held not inadmissible as violating statute of frauds or as attempting to vary terms of written agreement (Rev. St. 1923 33--106).
In action for fraud, deceit, and misrepresentations by which defendant received title to a plantation for inadequate consideration, whether defendant was guilty of actionable fraud held for jury.
The evidence of the plaintiff in his action for damages under his allegations of fraud, deceit, and misrepresentations, and promises alleged never intended to be performed, by which defendant received title to a plantation for an inadequate consideration, fully considered, and held to have been sufficient to make a prima facie case for the plaintiff and to justify the overruling of the demurrer thereto.
Appeal from District Court, Sedgwick County, Division No. 2; Robert L. Ne Smith, Judge.
Action by A. Z. Blankinship against Joe Porter. From a ruling overruling defendant's demurrer, defendant appeals.
Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L Morris, George B. Powers, Carl T. Smith, and C. H. Morris all of Wichita, for appellant.
A. M. Ebright, P. K. Smith, and Bernard Peterson, all of Wichita, for appellee.
This is an action to recover damages from the defendant on account of alleged fraud and deceit practiced upon the plaintiff by the defendant and alleged false representations and promises made by defendant to plaintiff, which defendant, it is alleged, never intended to perform, whereby defendant procured from plaintiff, relying thereon, title to an improved plantation of 1,407 acres in the state of Arkansas for an inadequate amount of money advanced in the nature of a loan.
The answer of the defendant was a general and special denial of all the allegations of the petition, except the fact that he is now the legal owner and in possession of the plantation described in the petition. The case was tried to a jury, evidence was introduced, instructions were given, and the jury failed to agree and was discharged.
The defendant appeals, assigning errors (1) in the admission of incompetent, irrelevant, and immaterial testimony over objections of the defendant, (2) in overruling the demurrer of defendant to the evidence of the plaintiff, and (3) in refusing to sustain the request of defendant for an instructed verdict.
Throughout the trial the defendant made timely objections and motions on the expressed theory that the action of the plaintiff was one for damages for breach of contract; and the plaintiff with equal consistency maintained and announced that the action of the plaintiff was to recover damages from the defendant on the ground of fraud, claiming the measure of such was the difference between the fair value of the plantation and the amount of money advanced by the defendant. One of such announcements was at the close of the taking of testimony in response to a motion filed by the defendant to require plaintiff to elect on which theory he was attempting to recover, and the plaintiff without a ruling on the motion announced it was on the theory of fraud and deceit.
The application of the statute of frauds to the evidence in the case, and the force and effect of representations and promises looking to the future instead of relating to past or existing facts, are the most important features involved in this appeal.
We shall pass the first assignment of error as to the admission of incompetent, irrelevant, and immaterial testimony and endeavor to disregard that which we might conclude to be such, in our consideration of the most important question submitted to us in this appeal, viz., whether the plaintiff's evidence was sufficient to justify the submission of the plaintiff's case to the jury and the overruling of the defendant's demurrer thereto.
The plaintiff introduced a written contract purporting and said to have been signed by the defendant, in which defendant agreed to loan plaintiff on his plantation in Arkansas from time to time, as needed, the total sum of $60,000. The plaintiff's evidence further shows that two advances were made in the total sum of $25,000 and a note and mortgage were given for the same, but no further advancements were ever made by defendant to plaintiff, although plaintiff testifies to numerous requests for such to which favorable promises were always and regularly given that further advances would shortly be made. The evidence further shows that later the plaintiff exchanged the equity in the plantation for an apartment in Kansas City, Mo., and still later at the request of the representative of the defendant, he instituted proceedings in Arkansas to recover the title and possession of the plantation upon the promise of such representative that defendant would carry out the terms of the contract and advance the balance of the money; that later the defendant asked plaintiff not to object to his intervening in that action in order to foreclose his mortgage, and if he did not interfere with the foreclosure or attempt to redeem, the defendant would convey the title back to him and advance the balance of the loan promised; that numerous requests and promises along this line were made by the defendant to the plaintiff until defendant procured in said action legal title to the plantation, after which he declined to fulfill any of them or the original contract itself; that the plaintiff had implicit confidence in all of defendant's promises and relied upon them; that defendant told him after he had acquired title to the plantation that "he was not going to loan me any money and that I didn't have time to re-finance that place and that he was just going to take it over and run it and going to forget about any other deal we ever had had," and when his attention was called to the contract he said, "that didn't make any difference that he had made up his mind that he wasn't going to go through with it."
One other witness testified he saw defendant sign the contract. Two others said they saw it shortly after it had been signed. Others testified as to the improvements and cultivation of the plantation, its oil prospects and efforts made toward development along that line, although no substantial results were reached as to production of oil or gas. Also, many witnesses testified as to the market value of the plantation, the figures given being greatly in excess of the loan advanced.
Was the plaintiff's evidence, of which the above is the general substance, sufficient to make a prima facie case for plaintiff or sustain his allegations to recover damages for fraud and deceit?
Appellant argues that appellee has by trading off his plantation rendered himself unable to perform his part of the contract even if appellant had been willing to have complied with the contract, and cites the rule in 13 C. J. 647 to the effect that performance of a contract is excused when it is prevented by the acts of the opposite party or is rendered impossible by him. In the same connection appellant also cites Dill v. Pope, 29 Kan. 289, and National Supply Co. v. Cement Co., 91 Kan. 509, 138 P. 599, to the same effect. Aside from the fact that these authorities have under consideration the enforcement of contracts, and assuming for the purpose of argument that the same rule might apply in an action to recover damages on account of fraud and deceit, one feature of the evidence is apparently overlooked and that is where the appellee at the request of the representative of the appellant commenced an action in Arkansas to set aside the conveyance of the plantation and that in the same action the appellant did later acquire legal title to the plantation, so that the disability of the appellee was only temporary by reason of the...
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