Else v. Freeman
| Decision Date | 11 November 1905 |
| Docket Number | 14,256 |
| Citation | 83 P. 409,72 Kan. 666 |
| Parties | SARAH ELSE et al. v. M. M. FREEMAN et al |
| Court | Kansas Supreme Court |
Decided. July, 1905.
Error from Hamilton district court; WILLIAM EASTON HUTCHISON judge.
Judgment affirmed.
George Getty, and George J. Downer, for plaintiffs in error.
U. T Tapscott, and W. R. Hopkins, for defendants in error.
OPINION
Stephen Else owned and occupied a farm in Hamilton county, Kansas, which he exchanged with M. M. Freeman for land in Howell county, Missouri. The trade was made by correspondence between the parties. Neither of them had seen the land traded for until after the exchange of deeds. Else executed the deed to his farm May 11, 1901. In June following he removed to his land in Missouri, but being dissatisfied therewith left immediately, and on November 12, 1901, began this suit to cancel the conveyance of his Kansas farm and to recover possession. He claimed in his petition that the conveyance was obtained by false and fraudulent representations concerning the Missouri land.
Stephen Else died on the 13th day of January, 1902, and the suit was subsequently revived in the names of Sarah Else, his widow and heir at law, and James Else, as his administrator.
The court made findings of fact and conclusions of law in which it found generally for the defendant, and specifically found that, of the numerous false representations alleged in the petition, only three were sustained, and they were not actionable. These three were the following: (1) "Fences are good; (2) place is watered by a spring, cistern, and stock pond; (3) the place is worth $ 2500." Each of these statements was made to induce the trade, and was false, and known to be so when made. The court also found that the second representation was not relied upon by Else, leaving plaintiffs' case resting entirely upon findings of fact Nos. 1 and 3, which were decided to be in the nature of opinions, rather than representations, and not actionable.
The court in its conclusions did not find either way as to the truth or falsity of the other representations; but by its general finding they must be held to have been against the plaintiffs.
Complaint is made of this failure of the court to cover all the representations by its special findings, but the failure of the plaintiffs to call the attention of the court to this omission and to request further findings relieves the court...
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