Delaney v. The Great Bend Implement Company

• Decision Date: 12 December 1908
• Docket Number: 15,714
• Citation: 98 P. 781,79 Kan. 126
• Parties: JOHN J. DELANEY v. THE GREAT BEND IMPLEMENT COMPANY
• Court: Kansas Supreme Court

98 P. 781

79 Kan. 126

JOHN J. DELANEY v. THE GREAT BEND IMPLEMENT COMPANY

No. 15,714

Supreme Court of Kansas

December 12, 1908

Decided July, 1908.

Error from Barton district court; JERMAIN W. BRINCKERHOFF, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PETITION--Construction--Action ex Contractu or ex Delicto. In determining whether a petition states a cause of action ex contractu or ex delicto it must be considered in its entirety, but with special reference to its prominent and leading allegations. Where the averments make it doubtful whether the action is on contract or in tort every intendment must be made in favor of construing it as an action on contract. The case of Railway Co. v. Hutchings, 78 Kan. 758, 99 P. 230 followed.

2. SALES -- Breach of Warranty -- Damages -- Non-negotiable Note. Where promissory notes given in payment of property sold under a contract of warranty have passed out of the control of the payee the maker may elect to treat them as valid obligations, notwithstanding they are non-negotiable, and his failure to interpose his defense in a suit brought against him by the holder of the notes will not prevent him from maintaining an action against the payee to recover damages for breach of warranty.

Lee Monroe, and George A. Kline, for plaintiff in error.

Osmond & Cole, for defendant in error.

OPINION

PORTER, J.:

John J. Delaney brought an action against the Great Bend Implement Company, in the district court of Barton county, to recover the sum of $ 1800. A general demurrer to the petition was sustained. He elects to stand upon his petition, and brings error.

Two grounds are urged in support of the demurrer, the first being that the petition stated a cause of action sounding in tort, and, not having been brought within two years, was barred by the statute of limitations. The petition is inartistically drawn, and reeks with surplusage. Every material fact is reiterated a number of times at great length. In substance, it recites that on July 24, 1903, the defendant, through its agent, C. A. Cutler, took a written order from Delaney to Garr, Scott & Co., of Richmond, Ind., for a thrashing outfit, to be paid for on delivery by notes executed to the Indiana company by Delaney; that afterward, on August 1, and before the machinery was delivered, the defendant sent its agent, Cutler, to the plaintiff again and entered into a verbal agreement with him, by which it agreed to sell him the same machinery at practically the same price, but on slightly different terms, and upon an express warranty that the outfit was to consist of a good sample separator and other machinery; that it would do first-class work, otherwise Delaney was not bound to accept it; and that the defendant would deliver it at once at Shaffer, Kan., and would make it do first-class work. It is then alleged that the outfit which the defendant shipped to Shaffer failed in divers and sundry respects to come up to the warranty under which it was sold; that it failed to do first-class work; that it consisted of second-hand and worn-out machinery, incapable of doing the work which it was represented to do; that it was tested by the defendant and found worthless, and was in fact never delivered to, nor accepted by, the plaintiff. It is alleged that the plaintiff, who was inexperienced in machinery of this kind, believing and relying upon the statements made by the agent with respect to the character of the machinery, executed and delivered to the defendant, instead of to Garr, Scott & Co., his four promissory notes, each for the sum of $ 391.25, secured by a mortgage upon his farm in Scott county, believing further that the machinery was in first-class condition and capable of doing good work, and that it would be delivered to him at once at Shaffer; that the defendant sold and indorsed the plaintiff's notes to the J. V. Brinkman Company Bank of Great Bend, for value, before maturity, and that the bank became an innocent purchaser thereof; that notwithstanding the failure of the defendant to deliver the machinery at the time agreed upon, or to comply with its agreement and warranty, it failed to return the notes to him or satisfy the mortgage; and that afterward the bank brought suit against him in Scott county on the notes and procured a judgment foreclosing the mortgage, and was about to sell his land to pay the judgment. Then follows an allegation that the representations of the defendant, made through its agent, concerning the machinery and its fitness to do the work were "false and untrue, and made for the express purpose of taking advantage of this plaintiff and defrauding him out of his money and property, and that by reason thereof, and the facts as herein set forth, there was and has been no consideration for the said notes and mortgage, and this plaintiff has been and is damaged by reason thereof and thereby in the sum of $ 1800." The prayer for judgment follows.

The precise question here was before us in the recent case of Railway Co. v. Hutchings, 78 Kan. 758, 99 P. 230, although the petition in that case was drawn with more care. There were averments sufficient to set up a cause of action for a breach of contract, and averments also that the contracts were executed fraudulently, by reason of which the plaintiffs suffered damage. In that case we held the fact that fraud was averred did not change the action from contract to tort. In the opinion it was said:

"The doctrine is well settled that where a petition contains a good cause of action for a breach of contract the addition of words or averments which are appropriate to a cause of action for a wrong will not change the action from contract to tort. (2 Beach, Mod. Law of Cont. § 1679, note.) And in case of doubt the courts are inclined against construing the pleading as embodying a cause of action for a tort. ( Goodwin v. Griffis, 88 N.Y. 629; Austin v. Rawdon, 44 N.Y. 63.)" (Page 763.)

The following authorities are to the same effect: Junker v. Fobes, 45 F. 840; Tuers v. Tuers, 16 Abbott's New Cases (N. Y.) 464; 4 Encyc. Pl. & Pr. 754, 915. See, also, St. Louis, I. M. & S. R. Co. v. Sweet, 63 Ark. 563, 40 S.W. 463, where the action was held to be ex contractu for the reason that an action ex delicto would have been barred by limitation. The courts generally regard the averments which are appropriate to an action in tort as mere surplusage, where the petition otherwise states a cause of action in contract.

"If the pleading contains allegations stating a good cause of action on contract, the mere fact that it also contains allegations suitable to an action of tort does not make the action any the less one of contract, and the latter allegations may be treated as surplusage and stricken out." (4 Encyc. Pl. & Pr. 915, and cases cited.)

In the foot-notes on the page from which the foregoing language is quoted it is stated that the true test, where the damages arise from breach of warranty, is "the presence or absence of an averment of intent to defraud, without which the action is one of contract, even though representations are charged to have been falsely and knowingly made," citing Lindsay v. Mulqueen, 26 Hun 485, and Stitt et al. v. Little et al., 63 N.Y. 427. The first of the two cases so holds, but there is no discussion of the question, and the opinion cites no authorities, while in the second the question here discussed is not mentioned. In McDonough v. Dillingham, 43 Hun 493, the well-established rule is recognized that where the allegations make it doubtful whether the action is on contract or in tort every intendment must be made in favor of construing it as an action on contract, and in that case the omission to allege that damages had accrued to the plaintiff by reason of the...