Epp v. Hinton

• Decision Date: 07 February 1914
• Docket Number: 18,613
• Citation: 138 P. 576,91 Kan. 513
• Parties: C. C. EPP, Appellee, v. CHARLES R. HINTON et al., Appellants
• Court: Kansas Supreme Court

138 P. 576

91 Kan. 513

C. C. EPP, Appellee, v. CHARLES R. HINTON et al., Appellants

No. 18,613

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Harvey district court; CHARLES E. BRANINE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EXCHANGE OF LANDS -- Fraudulent Representations--Rescission of Contract--Damages. Where an action is brought to rescind a contract on the ground of fraud, or to recover damages if a rescission can not be had, and the court finds that a rescission is impracticable, and awards damages, rulings with respect to the omission of the plaintiff to restore the benefits he has received under the contract are immaterial upon review.

2. SAME--False Representations as to Foreign Statute--Basis for Damages. False representations with respect to the law of another state may be the basis of an action for damages on the ground of fraud.

3. SAME--False Representations as to Water Rights--Damages. False representations that the ownership of a tract of land carries with it as a practical matter the privilege of using water for its irrigation, although no claim is made that a formal water right has been granted, may be the basis for the recovery of damages by the purchaser.

4. SAME--Improper Measure of Damages. In an action to recover damages because of false representations regarding a tract of land included in an exchange of property, boot having been paid by the plaintiff, the price at which the tract was estimated in arranging the terms of the bargain is not satisfactory evidence of what it would have been worth if the statements regarding it had been true.

Albert Hoskinson, and R. W. Hoskinson, both of Garden City, and Granby Hillyer, of Kansas City, Mo., for the appellants.

Clarence Spooner, Ezra Branine, and H. W. Hart, all of Newton, for the appellee.

OPINION

MASON, J.:

C. C. Epp brought an action against Charles R. Hinton and others, alleging that they had defrauded him by misrepresentations made as an inducement to the purchase of real estate. The plaintiff recovered a judgment for $ 14,500 and interest, as damages, and the defendants appeal.

The transaction out of which the controversy grows was an exchange of lands, the plaintiff paying boot of $ 20,000 in secured notes, which passed into other hands. The lands conveyed to the plaintiff were situated in Colorado. The substance of his contention is that representations were made that all of the lands were irrigable, and that as to a part of them this was untrue. A jury was impaneled, but, by consent of the parties, acted only in an advisory capacity, returning answers to specific questions. These the court approved, making also additional findings, covering all the issues.

In his petition the plaintiff asked that the contract for the purchase of the land be rescinded, and if this could not be done, that he have judgment for damages. The defendants maintain that the petition was fatally defective because it did not allege an offer to return the property conveyed to the plaintiff. The court found that a rescission of the contract was impracticable. The action then became one for the recovery of damages, thereby eliminating any question of the duty of the plaintiff to restore the benefits he had received.

The defendants assert that the representations relied upon as amounting to fraud were not of such a character as to afford a basis for the action. Upon sufficient evidence, the court found these facts, among others: The plaintiff received valid water rights with reference to a part of the land conveyed to him; he knew he was not to receive a similar formal evidence of a right to use water upon the remainder, but was led to believe that water was available for irrigating it, and that his ownership of the land entitled him to use the water. It is argued that under these conditions the question whether the owner of the land was entitled to water for its irrigation was not one of fact, but of opinion or law, and that a wrong statement with respect thereto could not amount to such a false representation as to constitute fraud. The question whether land is irrigable, in the sense that the owner has a legal right to water to be used upon it necessarily depends upon the local law on the subject. It is said that a false representation as to a matter of law will not support an action for deceit, because it is essentially an expression of opinion. (14 A. & E. Encycl. of L. 55; 20 Cyc. 54.) But the question--What is the law of another state?--is regarded as one of fact (Osincup v. Henthorn, 89 Kan. 58, 130 P. 652, annotated in 46 L.R.A. N.S. 174), and a misstatement concerning it may be actionable (20 Cyc. 54). We think the representations here relied upon could form the basis of the action apart from this consideration. The matter did not turn upon some general proposition--a naked legal question. There was evidence that the plaintiff was told that conditions existed that made it safe for him to depend upon using the water unchallenged, from the circumstance that it had previously been used upon...