Elerick v. Reid

• Decision Date: 05 January 1895
• Parties: C. F. ELERICK v. DENT REID
• Court: Kansas Supreme Court

38 P. 814

54 Kan. 579

C. F. ELERICK v. DENT REID

Supreme Court of Kansas

January 5, 1895

Error from Crawford District Court.

ACTION by Reid against Elerick to recover $ 3,000, which plaintiff alleged that defendant obtained from him by fraud.

Judgment for plaintiff. The defendant comes here. The material facts are stated in the opinion herein, filed January 5, 1895.

Judgment affirmed.

Fuller & Randolph, and Morris Cliggitt, for plaintiff in error.

W. R Biddle, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

This action was brought by Dent Reid against C. F. Elerick to recover $ 3,000 and interest, which it is claimed was obtained by the defendant from the plaintiff by fraud. Elerick was a merchant at McCune, Kan., owning a miscellaneous stock of merchandise. Reid had been a farmer in Illinois. He came to Kansas for the purpose of becoming a merchant. He wished to trade a farm belonging to his father-in-law, in Hardin county, Ill., for a stock of goods. At Kansas City, he learned through a real-estate agent of Elerick's stock, and went down to see it. He arrived there on the morning of the 19th of February, 1889, and on the morning of the 20th of February a written contract was signed by the parties, by which it was agreed that Reid should buy Elerick's stock of goods, to be invoiced at Elerick's private letter mark, the key to which was copied in the contract, and in payment therefor was to furnish a deed to the Illinois farm, which was to be accepted as a payment of $ 9,000 on the goods, and was to deposit on that day, in the bank of J. L. Ward, $ 3,000, to the credit of Reid. The deposit was so made. The parties were to commence invoicing the goods on the 4th of March following. It was agreed that whatever difference there might be between $ 12,000, the amount of the farm and money deposited, and the invoice of the goods, should be paid in cash to the party entitled to it. When the parties proceeded to make the invoice, it was discovered that Elerick's private letter mark indicated a price far in excess of original cost and carriage of the goods, and the sum total of the invoice, as made by Elerick, was $ 25,123.61. The plaintiff contends that he bought the goods for cost and carriage, and that Elerick represented to him that the private letter mark represented cost and carriage of the goods. The defendant contends that the goods were to be invoiced at the private letter mark; that a key to that letter mark is contained in the contract, and denies that he ever in any manner represented to the plaintiff that the letter mark indicated the original cost of the goods and carriage. The jury found in favor of the plaintiff -- that he was induced to enter into the contract by fraud.

The principal contention in this court on behalf of the plaintiff' in error is, that all the statements and representations charged to have been made by Elerick were mere expressions of opinion as to value, which any seller has a perfect right to make; that such expressions of opinion cannot in any case become the basis of an action for fraud. While there is much diversity in the cases as to what is the limit to which a seller may lawfully go, in his representations as to the quality and value of his goods, we do not think this case rests on mere expressions of opinion. It is urged, also, that statements as to the price paid by the seller for the article sold are immaterial, and that the buyer has no right to rely on such statements. This may be true in a general sense, for the matter which concerns both buyer and seller is merely what is the present value of the article sold. Ordinarily, where the goods are open to the inspection of the buyer, he is presumed to be as competent to judge of their value as the seller. "Venditor vendit quam maximo potest emptor emit quam minimo potest," is the maxim of the law stating the usual and permissible course of dealing, where there is no fraud or relation of trust or confidence. On the one hand, it is held to be permissible for the seller to puff and extol the commodity, and on the other, for the buyer to disparage and detract. However wrong in morals it may be for either party to express anything other than an honest opinion, the courts deem it the wiser and better rule to require each party to a trade to rely on his own judgment rather than to be permitted, after having made a bad bargain, to come into court on the claim that he relied on the judgment and opinion expressed by the adverse party.

In this case, the stock of merchandise was not sold for an aggregate sum agreed on by the parties. The value of the stock of goods as a whole was to be determined by a private mark used by the defendant. The plaintiff had no knowledge as to what the letters used in making that private mark represented until they were inserted in the written contract. The defendant himself, on the witness stand, testified that Reid did not ask what the private letter mark was, and that he did not tell him, and that the private letter mark in fact represented the selling price of the goods. It appears also from the defendant's own testimony that the goods were also marked in figures at a higher price, and he states that this was done for the purpose of aiding him in selling the goods. The substance, then, of the defendant's claim is that he sold these goods to the plaintiff at prices concerning which the plaintiff had no knowledge in fact whatever at the time he signed this contract; that he neither knew the price of any one article nor the price of the stock as a whole, but that that price was to be determined by cabalistic marks on the goods, with which the defendant was familiar, though the plaintiff knew nothing. It must be apparent that his statements as to what these letters represented are not statements of value in any sense, but are statements of fact. Neither is a statement as to what the gross valuation of the stock of goods, computed according to the private letter mark, would be the mere expression of an opinion as to the value of the goods. That sum would depend on quantity and price. The question here is whether there was fraud and deceit through which the plaintiff was entrapped into signing a...