Morrow v. Bonebrake

• Decision Date: 06 May 1911
• Docket Number: 17,033
• Citation: 84 Kan. 724,115 P. 585
• Parties: ROSE MORROW, Appellee, v. P. D. BONEBRAKE, Appellant
• Court: Kansas Supreme Court

115 P. 585

84 Kan. 724

ROSE MORROW, Appellee, v. P. D. BONEBRAKE, Appellant

No. 17,033

Supreme Court of Kansas

May 6, 1911

Decided January, 1911.

Appeal from Jackson district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. VERDICT--General--Import. A general verdict for plaintiff imports a finding in his favor upon all the issues in the case which are not inconsistent with the special findings returned by the jury.

2. VERDICT--General--Judgment Based Thereon--Adverse Special Findings Not Material. Where the special findings do not embrace and cover all the issues in the case and those returned are not necessarily inconsistent with the general verdict, the fact that the incomplete findings are adverse to the successful party will not prevent a judgment in his favor if the issues and facts included in the general verdict, and upon which no special findings are made, are sufficient to warrant a recovery.

3. VERDICT--Special Findings Inconsistent with General Verdict--Presumption. Where a question of inconsistency arises between findings made in answer to special questions and a general verdict nothing will be presumed in aid of special findings while every reasonable presumption will be indulged in favor of the general verdict.

4. FRAUDULENT REPRESENTATIONS-- Inspection by Vendee Does Not Preclude Rescission and Recovery. The seller of a diamond represented to a buyer, who did not know the grades and qualities of diamonds, that the one sold was of a certain grade and quality, and when it was found not to be up to the representations and assurance of the seller, and the buyer undertook to rescind the contract and recover the purchase price, the seller claimed that the fact that the buyer carefully examined the diamond before purchasing it precluded a recovery. Held, that the fact that an examination was made by the buyer does not prove that she did not buy and rely on the representations and assurance of the seller, nor will the fact that she could have learned the falsity of the representations by a more thorough and searching inquiry prevent a rescission and a recovery if in fact the purchase was made in reliance upon the false representations.

5. FRAUDULENT REPRESENTATIONS--Untrue Positive Statements as Actionable as Though Willfully False. If a seller makes positive statements and representations not known by him to be true, intending to induce a sale, and a purchase is made in reliance upon his representations which turn out to be false, his action is fraudulent and he is as answerable to the purchaser as if he had made the representations knowing them to be false.

M. A Bender, and Charles Hayden, for the appellant.

G. L. Hursh, E. D. Woodburn, A. E. Crane, and F. T. Woodburn, for the appellee.

OPINION

JOHNSTON, C. J.:

Rose Morrow brought this action against P. D. Bonebrake to recover the sum of $ 420, which she had paid to him as the purchase price of a diamond, and obtained a judgment, from which he appeals. It appears that Rose Morrow, the appellee, wished to purchase a diamond as a present for her husband, and with that purpose in mind she had looked at one for sale by Armel Brothers, who were competitors of appellant, but had not yet made up her mind to purchase it. Bonebrake, learning that appellee was in the market for a diamond, proceeded to show her those he had in stock, none of which suited her. She told him of the stone at Armel Brothers, and he agreed to procure and sell her one equal in quality and one-fourth carat heavier for the same money asked by Armel Brothers for their diamond, it weighing one and three-fourths carats and being a pure white stone, perfectly cut, without flaw, and priced at $ 400. This arrangement seemed desirable to appellee, and the stone was procured, and after being examined by her she purchased and paid for it. Subsequently, upon making a comparison with the Armel stone, she found that the diamond purchased from Bonebrake was inferior in quality, whereupon she immediately returned it and demanded a return of the purchase price, which was refused.

With a general verdict in favor of appellee the jury returned answers to a number of special questions submitted at the instance of appellant, and he insists that his motion for judgment on the special findings should have been allowed. In her petition appellee alleged that appellant offered to procure and sell her a diamond which should in all respects be equal to and one carat heavier than the one that had been offered to her by Armel Brothers. It was alleged also that the diamond sold to her was of inferior cut, color and quality to that named as a standard; that she did not know the quality, cut and grade of diamonds by inspection, a fact which appellant knew, and that she purchased the stone relying upon his representations and agreement. In answer to a question framed by appellant the jury found that the diamond sold was perfectly cut, was free from flaws and weighed considerably more than the Armel stone. The jury were not asked to make special findings as to whether appellant represented and agreed that the diamond was to be equal in color and quality to the Armel diamond, and if so whether appellee bought it on the faith of such representations...