Losch v. Pickett

• Decision Date: 04 February 1887
• Citation: 12 P. 822,36 Kan. 216
• Parties: WILLIAM LOSCH v. ANNA A. PICKETT, et al
• Court: Kansas Supreme Court

12 P. 822

36 Kan. 216

WILLIAM LOSCH v. ANNA A. PICKETT, et al

Supreme Court of Kansas

February 4, 1887

Error from Shawnee District Court.

THE opinion states the nature of the action, and the material facts. Trial at the January Term, 1885, and judgment for defendants. The plaintiff, Losch, brings the case to this court.

Judgment affirmed.

Jetmore & Son, for plaintiff in error.

Charles M. Foster, and Waters & Chase, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

In the court below, as in this court, William Losch was the plaintiff and Anna A. Pickett and William C. Hamilton were the defendants. The case was tried before the court and a jury, and after all the evidence of the plaintiff was introduced the defendants interposed a demurrer thereto, on the ground that it did not prove any cause of action, and the court below sustained the demurrer and rendered judgment in favor of the defendants and against the plaintiff for costs. To reverse this judgment the plaintiff brings the case to this court.

In order to have a proper understanding of the case, it will be necessary to state the substance of both the pleadings and the evidence. The plaintiff's petition contained three counts, and in each count he set forth a separate cause of action. In the first count he alleged a conspiracy and fraud on the part of the defendants in procuring the plaintiff and T. R. Grandstaff to take an assignment of a lease of lot No. 90 on Harrison street in the city of Topeka Kansas, which lot contains one or two supposed mineral wells. The lease was for a term of nine years, commencing on February 1, 1881, and running to February 1, 1890, and was executed on January 28, 1881, by the defendant Pickett and her husband to the defendant Hamilton, and was assigned on the same day by Hamilton to the plaintiff Losch and T. R. Grandstaff, and on January 9, 1882, Grandstaff assigned his interest in the lease to the plaintiff. The fraud alleged is that the defendants represented to the plaintiff and Grandstaff that the mineral wells contained great quantities of never-failing mineral water, which were of great value in the cure of sickness and diseases; which representations, it is alleged --

"Were false and fraudulent in this, that the said mineral wells did not possess and contain great, or any, quantities of mineral water as aforesaid, but that the same became, and were at the time of said transfer by defendants to plaintiff, void of water and destitute of mineral and medical properties; all of which facts were to the defendants then and there well known and understood."

In the second count of the plaintiff's petition, it is alleged that --

"The said mineral wells were and are of great value, and possess mineral and medicinal properties, thereby enabling the plaintiff to, and who would be enabled to, make great income, gains and profits from the use, sale and disposition thereof to sick patients and customers, and other persons who would use and patronize the same."

And that on July 10, 1883, the defendants wrongfully rescinded the lease and ejected the plaintiff from the premises, and wrongfully retained a portion of the plaintiff's personal property, attached to the premises.

In the third count of the plaintiff's petition, it is alleged "that the defendants are indebted to the plaintiff in the sum of $ 5,000, for work and labor," etc., "furnished defendants at their special instance and request."

There are other allegations in the plaintiff's petition, the material ones of which will be hereafter mentioned in this opinion.

The defendants answered to this petition separately -- the defendant Pickett setting forth fifteen separate defenses, and the defendant Hamilton three. Among these defenses are the following: A general denial, the two-years statute of limitation, a defect of parties plaintiff, a misjoinder of causes of action, contradictory and inconsistent allegations in the petition which defeat the first and second supposed causes of action.

The plaintiff, for reply to these answers, set forth that his action was commenced within two years after the discovery of the alleged fraud.

The evidence tends to prove the following facts: The leased premises belonged to Mrs. Pickett. She had, previous to January 28, 1881, leased the same to Hamilton, and his lease had not yet expired. On January 28, 1881, he procured the lease to be extended to February 1, 1890, and paid Mrs. Pickett $ 100 additional for such extension. Mrs. Pickett, at the time, had notice that he was negotiating with Losch and Grandstaff, and that he expected to transfer the lease to them; but it does not appear that she ever authorized Hamilton or any other person to make false statements to Losch or Grandstaff, or to anyone else. Hamilton, however, did make false statements to Losch and Grandstaff, representing to them that there was an abundance of mineral water in the wells, when, in fact, there was not. Only one of the wells was considered as possessing mineral water, and the water in that well was at that time only such as had been brought from a distance and poured into it. It contained some kind of insects, which Losch, as a witness, called "wiggles," and which his wife, as a witness, called "wiggle-waggles." Of all this the plaintiff and Grandstaff had knowledge prior to the month of May, 1881. Indeed, they had sufficient knowledge of the wells and their condition prior to their purchase of the lease to put them upon inquiry, and they should not have relied upon the statements of Hamilton or Pickett, or any other interested person. The evidence clearly shows that Losch and his wife knew the condition of the wells in February of that year, and that Grandstaff knew it in March, and that the water gave out in April of that year. Grandstaff, finding that the wells were not what they were represented to be, and that they were practically worthless, soon thereafter abandoned them in "disgust," and on June 28, 1882, left the state and went to Colorado, where he still resides. The plaintiff cleaned out the wells, but that did them but little good. In September, 1881, he drilled the mineral well deeper, but even that was of but little benefit to it. On January 9, 1882, Grandstaff assigned his interest in the leased premises to the plaintiff, Losch. On July 1, 1882, the defendant, Mrs. Pickett, reduced the rent from $ 50 per month to $ 25 per month, which reduction was to continue for one year and until the last of June, 1883, when she said she would make it favorable to the plaintiff. On July 1, 1883, the defendant, Mrs. Pickett, through her husband and agent, demanded the rent of the plaintiff, Losch, for that month, at the rate of $ 50 per month, but he refused to pay that amount, and tendered $ 25. Up to that time the rent had been paid to the satisfaction of Mrs. Pickett. Under the lease the rent was to be paid in advance, and the amount was $ 50 per month; and for non-payment of the rent it was stipulated in the lease that the defendant, Mrs. Pickett, might "of her own election, distrain for the rent due, or declare this lease at an end, and recover the same as if held by forcible detention; the said party of the second part, (Losch and Grandstaff's assignor, Hamilton,) hereby waiving any notice of such election, or any demand for the possession of said premises." On July 3, 1883, the defendant, Mrs. Pickett, gave notice to the plaintiff that the lease was terminated for the non-payment of rent, and for him to leave the premises. July 8 to 10, 1883, the defendant, Mrs. Pickett, removed the plaintiff's property from the premises, and took the possession of the premises herself, and has remained in the possession thereof ever since. The plaintiff, at the time, contemplated removing from the premises, and had already removed a portion of his property. He did not reside there, and was not present when Mrs. Pickett removed his property from the premises. There were some other facts shown which we shall mention, if necessary, as we proceed with this opinion.

The first question to be considered in this case is,...