McWilliams v. Barnes
| Decision Date | 12 April 1952 |
| Docket Number | No. 38581,38581 |
| Citation | 172 Kan. 701,242 P.2d 1063 |
| Parties | McWILLIAMS et ux. v. BARNES. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. A party defrauded in the making of a contract, who discovers the fraud after having partly performed, may continue with performance and also have his action for damages.
2. Although the rule is that a party who asserts fraud had the burden of proving it by a preponderance of the evidence which must be clear, satisfactory and convincing, that rule does not apply where the evidence is attacked by demurrer. In such case the trial court does not weigh the evidence but must consider it and all reasonable inferences that may be drawn therefrom in favor of the party offering it.
3. The record examined in an action to recover damages for misrepresentations made in connection with a sale of real estate, and held, the trial court did not err in overruling the defendant's demurrer to the plaintiffs' evidence, nor in denying defendant's motion for a new trial.
Justus N. Baird, of Kansas City, argued the cause and was on the briefs for the appellant.
James J. Lysaught, of Kansas City, argued the cause and was on the briefs for the appellees.
This was an action to recover damages for misrepresentations made in connection with a sale of real estate, and from a judgment in favor of plaintiffs the defendant appeals.
The action was commenced on August 18, 1950, in the city court of Kansas City. In their bill of particulars plaintiffs alleged that on November 18, 1947, they entered into a written option purchase contract for certain described real estate at an agreed price of $4,500, and at that time defendant stated and represented to them that the drainpipes in the house situated on the real estate were connected to and emptied into the city sewer system; that about the latter part of September, 1948, plaintiffs discovered that the drainpipes were not so connected but drained into a pit on the rear of the property, and at the time of discovery the pit was overflowing and sewage lay on top of the ground; that plaintiffs could not have discovered the falsity of defendant's statement about the drains connecting with the city sewer by ordinary inspection of the property; that such statements were wilfully, maliciously and wantonly made for the purpose of defrauding plaintiffs; that the actual value of the real estate at the time of plaintiffs' purchase was $3,800 instead of $4,500 and plaintiffs had been damaged in the sum of $700; that by reason of the false statements and the wanton and malicious manner in which they were made with deliberate attempt to injure the plaintiffs, they were entitled to punitive damages in the sum of $250; and they prayed judgment for these sums.
Trial in the city court resulted in a judgment for defendant. Plaintiffs appealed to the district court, where defendant filed an answer containing a general denial and an allegation that plaintiffs' cause of action was barred by the statute of limitations.
A trial by jury was had. Defendant's demurrer to plaintiffs' evidence was overruled, defendant offered her evidence, the cause was submitted to the jury under instructions of which no complaint was made and the jury returned a verdict in favor of plaintiffs and against defendants for actual damages of $700 and punitive damages of $250. Defendant's motion for judgment notwithstanding the verdict and her motion for a new trial were denied and she perfected her appeal to this court, her specification of errors covering the matters hereafter discussed.
Consideration of appellant's complaint that the trial court erred in overruling her demurrer to appellees' evidence requires a brief review of the evidence. The evidence disclosed that on November 18, 1947, appellant and appellees entered into a written contract that in consideration of the sum of $1,000 paid to appellant by appellees, the appellees were given until January 1, 1948, the option to purchase the involved real estate for $4,500 and the right to extend the option from month to month thereafter by the payment of $35 on the first day of each succeeding month thereafter. Endorsements on the contract showed that it had been fully complied with by appellees up to the time of filing the action. Without detailing the evidence of any witness, the proof tended to show that prior to the execution of the contract appellees inspected the house on the real estate, inquired about the drains from the bath, toilet and kitchen sink and were informed by appellant the drains were connected with the sewer in the street; that in September, 1948, the sewer stopped up and on inquiry then made it was found the drains connected with the cesspool in the back yard and not with the sewer; that efforts to secure settlement were unavailing and action for damages was commenced. Other evidence tended to show the value of the premises with and without sewer connections. Other evidence tended to show that appellant was warned by a third party that if she sold the property she had better tell the buyers the property was not connected with the sewer and appellant replied it was on the sewer. We note further that appellant, testifying in her own behalf, stated that one of the appellees asked her if the property was connected to the sewer and that she answered, 'The sewer is across the street.'
The appellant presents four grounds that the trial court erred in overruling her demurrer to the evidence.
I. She first asserts that if there was any fraud the appellees have waived it by continuing to make the payments due under the contract after they had discovered the fraud, and in support she directs attention to Bell v. Keepers, 39 Kan. 105 17 P. 785; Cleaves v. Thompson, 122 Kan. 43, 251 P. 429; and McLean v. Clapp, 141 U.S. 429, 12 S.Ct. 29, 35 L.Ed. 804. Examination of those decisions discloses that in each the action was not one on the contract to recover damages, but was one to rescind. Such cases are not in point here. The general rule applicable...
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