Brown v. J. I. Case Plow Works

• Decision Date: 11 January 1900
• Docket Number: 524.[*]
• Citation: 59 P. 601,9 Kan.App. 685
• Court: Kansas Court of Appeals
• Parties: G. W. BROWN AND W. E. BROWN, Partners as Geo. W. Brown & Son, v. J. I. CASE PLOW WORKS

59 P. 601

9 Kan.App. 685

G. W. BROWN AND W. E. BROWN, Partners as Geo. W. Brown & Son, v. J. I. CASE PLOW WORKS

No. 524.^[*]

Court of Appeals of Kansas

January 11, 1900

Decided January, 1900.

Error from Butler district court; C. W. SHINN, judge.

Judgment of district court affirmed.

SYLLABUS

1. PRACTICE, DISTRICT COURT -- Demurrer after Answer. After answer filed, it is within the discretion of the court to entertain a demurrer to the petition, upon the ground of a misjoinder of causes of action.

2. -- Amended Answer -- Waiver of Error. Error, if any, in sustaining a demurrer to an amended answer is waived by filing a second amended answer.

3. FRAUD -- Acts and Declarations -- Intent. The intent to defraud is shown by acts and declarations, and if a party is guilty of an act which defrauds another, his declarations that his intentions were honest cannot be taken as sufficient to overthrow the act.

4. -- Evidence Sufficient. The evidence of plaintiff examined, and held, that the court did not err in overruling defendant's demurrer thereto.

A. L Redden, for plaintiffs in error.

E. N. Smith, and W. M. Rees, for defendant in error.

OPINION

SCHOONOVER, J.:

This action was brought by defendant in error as plaintiff, to recover the value of certain agricultural implements, which plaintiff alleged bad been unlawfully converted by Brown & Son, defendants below, to their own use and benefit. Plaintiff alleged in its petition, in substance, that it sold certain agricultural implements to Smith & Weidlein, a firm doing business at Augusta, Kan., and that by the terms of the contract of sale the title to said property was to remain in plaintiff until it was paid for; that defendants, with knowledge of said conditional contract of sale, converted said property to their own use, to the plaintiff's damage in the sum of $ 928.16.

For a second cause of action, the plaintiff alleged that on the 25th day of July, 1892, and up to the 22d day of February, 1893, Smith & Weidlein were engaged in the hardware business in Augusta, and that on the 20th day of February, 1893, they orally represented to plaintiff's agent that they were worth, over and above their indebtedness and exemptions, the sum of $ 10,000, and enumerated different property that they were the owners of, which statements and representations were false, and then gave defendants as references, and that each of said defendants, on or about the 20th day of February, 1893, made statements to such agent concerning the financial condition of Smith & Weidlein that were false; that said Browns, in the month of July, 1892, wrote a letter to the plaintiff of which the following is a copy:

"AUGUSTA, KAN., July 25, 1892.

"J. I. Case Plow Co., Racine, Wis.:

"GENTLEMEN -- Yours of the 23d is at hand and contents noted, and in reply will say that I consider Smith & Weidlein all right. They carry a $ 4500 stock, all of which is paid for but about $ 500, and the commission goods they carry. These parties are rustlers and are doing a good business. The reason you did not find their names in the agency book is they bought out Hill Bros., two months ago. Weidlein owns considerable stock and Smith owns a 120-acre farm and his residence in town, both of which are clear of all encumbrance. I have known these men for several years and have no hesitancy at all in recommending them to you as good, straight men and men that will pay their bills and pay them promptly.

Yours truly, W. E. BROWN, Cashier."

It was further alleged that, upon the representations contained in said letter and the oral representations made to its agent, plaintiff sold Smith & Weidlein the goods in controversy; that afterward defendants took possession of said goods under a claim of purchase, but that said transfer was without consideration and void and made in fraud of plaintiff's right, and that by reason of said representations and the knowledge of defendants said sale and transfer were not bona fide, but were fraudulent and void.

The Browns answered this petition, and when the case was called for hearing it was, upon application of plaintiff, continued to the next term, leave being granted to defendants to file an amended answer. When the case was again called for hearing defendants asked leave to file a demurrer, which motion was by the court overruled. Defendants then filed their amended answer to which plaintiff demurred, and the demurrer was sustained as to certain defenses.

Defendants then filed an amended answer setting forth (1) a general denial; (2) an admission that W. E. Brown wrote the letter that was attached to the amended petition, and alleging that the letter was written without consideration and at the request and was for the accommodation of the plaintiff, in response to a letter received from plaintiff; and that all the statements were true in said letter, except the statement that Smith owned a 120-acre farm, which statement Brown had reason to and did believe was true when the letter was written, and did not know anything to the contrary until after the commencement of this suit, when he learned that the farm belonged to the wife of Smith, and said plaintiff knew that fact before the goods were sold, and Smith so informed Pollard; and (3) that the defendants, on the 21st day of April, 1893, took possession of certain property of said Weidlein and Smith & Weidlein, all of which was done for a valuable consideration and to secure a bona fide indebtedness, and did release certain sureties and guarantors they then had on the indebtedness of Weidlein; that the contract under which the plaintiff claimed had not been filed for record, and def...