Robbins v. Bros.

• Decision Date: 10 December 1892
• Citation: 50 Kan. 120,31 P. 686
• Parties: W. W. ROBBINS v. BARTON BROS
• Court: Kansas Supreme Court

31 P. 686

50 Kan. 120

W. W. ROBBINS v. BARTON BROS

Supreme Court of Kansas

December 10, 1892

Error from Kingman District Court.

ACTION by Barton Bros. against Robbins, to recover damages for fraudulent representations. Judgment for plaintiffs for $ 624.84. Defendant comes to this court. The opinion states the facts.

Judgment reversed.

Gillett Bros. & Co., and Geo. W. Willis, for plaintiff in error:

The objection to the introduction of evidence should have been sustained, for the reason that the amended petition did not state a cause of action, in this, that it did not allege an intent on the part of Robbins to cheat, injure or defraud the plaintiff. See 5 Am. & Eng. Encyc. of Law, 318; Benj Sales, § 638; 2 Addison, Torts (Wood's ed.), § 1216; Estee, Pleadings (3d. ed.), §§ 2749, 2752. See, also, Russell v. Clark, 9 Cranch, 69; 25 N.W. 491; 51 Barb. 116; Allen v. Abbington, 11 Wend. 374; Zabriskie v Smith, 13 N.Y. 322; Wakeman v. Dalley, 51 id. 27; Marsh v Falker, 40 id. 562; Custer v. Cumstock, 40 id. 575; Meyers v. Amidon, 45 id. 169; Oberlander v. Spies, 45 id. 145; Pasley v. Freeman, 3 T. R. 51; Collins v. Evans, 5 Q. B. 829; 15 Cal. 414; 34 Kan. 39; 40 id. 367.

The objection to the introduction of evidence should have been sustained, on the further ground that the petition does not set forth that the plaintiff below relied on the statements said to have been made. 2 Addison, Torts, (Wood's ed.), § 1218; 33 N.J. 513; 58 N.Y. 263; Gowings v. White, 33 Ind. 125; Estee's Pleadings (3d ed.), § 2779.

The objection to the introduction of evidence should have been sustained for the third and further reason, that the statement, "I consider H. G. Gorton perfectly good for a bill of goods to the amount of $ 624.84; H. G. Gorton is safe," is a mere matter of opinion. In this case an action for deceit will not lie against Robbins for statements of opinion, no matter what motive might have actuated him in giving the opinion. Bristall v. Braidwood, 28 Mich. 192; 38 id. 6; 35 id. 36; Belcher v. Castello, 122 Mass. 189; Marsh v. Falker, 40 N.Y. 562; Milliken v. Thorndyke, 103 Mass. 382.

The court erred in overruling the objections of the plaintiff in error to the depositions of Wm. Barton, R. L. Jaynes, and T. F. Byrnes. The objections made to the deposition of T. F. Byrnes should have been sustained, and the court committed error in not sustaining each of them. At the time the deposition was offered, and read over defendant's objections, there was not a word of evidence to show what connection N. E. Gorton had with the case. Through the entire case, from the beginning to the end of the case, there was not a single word offered to in any way connect him with the case.

It does not appear that he was a relative or acquaintance of H. G. Gorton, or that H. G. Gorton had ever seen or heard tell of the man, and to say that the defendant, Robbins, should be called upon in this case to respond in damages because of a transaction he had sometime had with N. E. Gorton, that had no connection with this case, is so preposterous as to admit of no argument.

The court erred in giving to the jury instructions numbered 3, 5, 6, 9, 10, and 11. Under instruction number 5, it makes no difference whether the person relying on the statements complained of was in a position to ascertain the truth or falsity of the statements relied on; no difference if they were made, as in this case, under such circumstances as that both parties could have been said to have been on equal footing, so that the party relying must have relied at his peril; no difference whether the expression complained of might, in the opinion of the jury, have been only an expression of opinion and one not actionable. In short, the circumstances surrounding the case cut no figure, and the nature of the statement makes no difference.

Geo. W. Cooper, for defendants in error:

Many authorities might be cited sustaining our position, that said first assignment of error is not tenable, and that the allegations in said petition are sufficient to withstand a demurrer. More especially is this true when a demurrer is interposed to the evidence, or an objection to any evidence being introduced after answer and upon the trial, as was done in this case. See Potter v. Taggart, 11 N.W. 678, 680.

In the case of Hazelton v. Union Bank, 32 Wis. 34-43, Mr. Justice Lyon, in delivering the opinion, says: "The rule is well settled, that a greater latitude of presumption may be indulged in to sustain a complaint where the objection that it does not state a cause of action is taken for the first time at the trial, and after an issue of fact has been taken upon it by answer, than where the same objection is taken by demurrer." The same rule was stated in Teetshorn v. Hall, 30 Wis. 162-167; Hamilton v. Haight, 32 id. 238-242; Lutheran Evangelical Church v. Cristgan, 34 id. 328; Johnson v. Lumber Co., 46 id. 119; Johannes v. Youngs, 46 id. 448; Wittman v. Watry, 46 id. 493. See, also, Marvin v. Weider, 48 N.W. 825; Stutsman Co. v. Mansfield, 37 id. 304, 306; K. C. & S.W. Rly. Co. v. Farnsworth, 39 Kan. 356.

Plaintiff in error says: "The objection to the introduction of evidence should have been sustained, on the further ground that the petition does not set forth that the plaintiff below relied upon the statements said to have been made." This point is not well taken, and none of the authorities cited by plaintiff in error sustain the objection made to the petition in that respect.

Plaintiff in error further says: "The objection to the introduction of evidence should have been sustained for the third and further reason, that the statement, 'I consider H. G. Gorton perfectly good for a bill of goods to the amount of $ 624.84; H. G. Gorton is safe,' is a mere matter of opinion." Conceding, for the purpose of argument, (which we do not admit,) that the said language was the expression of an opinion only, under the evidence and circumstances of this case, plaintiff in error would be liable. 5 Am. & Eng. Encyc. of Law, p. 325; paragraph 9 of note 6 reads as follows: "If a party gives an opinion and at the same time has positive knowledge at variance with this statement, and the other party honestly believes it and so acts, he can obtain redress fer this deceit." Birdsey v. Butterfield, 34 Wis. 52; Pike v. Fay, 101 Mass. 134. See, also, Hazard v. Irwin, 18 Pick. (Mass.) 95; McDonald v. Trafton, 15 Me. 308; Gumby v. Sluter, 44 Md. 237; Monroe v. Pritchett, 16 Ala. 785; Wakeman v. Dalley, 51 N.Y. 27; Insurance Co. v. Reed, 33 Ohio St. 263.

There was no error in the admission of the deposition of T. F. Byrnes. The evidence therein contained was pertinent, relevant, and material, under the issue as made by the pleadings in this case. Bancroft v. Heringhi, 54 Cal. 120; Lockwood v. Doane, 107 Ill. 235; 109 Mass. 453; 1 Thomp. Trials, 299.

Viewing the court's instructions herein in the light of the law, hereinbefore cited, applicable to this case, we submit they fairly presented the case to the jury, and were fully supported by the evidence. Bartlett v. Cheesebrough, 49 N.W. 360.

GREEN, C. All the Justices concurring.

OPINION

GREEN, C.:

Barton Bros. sued W. W. Robbins, in the district court of Kingman county, to recover $ 624.84, damages for alleged false and fraudulent representations concerning the financial standing of H. G. Gorton. The plaintiffs alleged in their amended petition --

"That on or about the 15th day of January, 1888, they were induced by the following false and fraudulent representations of the defendant, who was at the time a banker at Norwich, Kan., in regard to the financial standing of one H. G. Gorton, made to the agents and servants of the plaintiffs, to sell and ship said H. G. Gorton a bill of goods to the amount of $ 624.84; that said false and fraudulent representations were as follows, to wit: 'I consider H. G. Gorton perfectly good for a bill of goods to the amount of $ 624.84; H. G. Gorton is safe;' that defendant well knew at the time of making said representations to the agents and servants of the plaintiff that said H. G. Gorton was not able to pay for said goods, and was not fit to be trusted on credit, and that the said H. G. Gorton was, at the time of making said purchase of said stock of goods, insolvent and wholly irresponsible financially, and was at the time of making representations by defendant to the agents and servants of the plaintiffs aforesaid, and was known to the defendant at the time to be so. . . . That by reason of which said false and fraudulent representations plaintiffs have been damaged in the sum of $ 624.84."

The plaintiffs alleged that they had been unable to collect anything from Gorton, and that by reason of said false and fraudulent representations they had been damaged in the sum of $ 624.84, for which they asked judgment. To this amended petition, a general denial was filed.

A trial by the court and a jury was had upon the issues thus joined, and a verdict was returned in favor of the plaintiffs for the amount claimed. A motion for a new trial was overruled, and judgment was entered upon the verdict. The plaintiff in error brings the case to this court upon numerous assignments of error, which we will now consider.

The ruling of the district court is first challenged in permitting any evidence to be offered by the plaintiffs, for the reason that the amended petition did not state facts sufficient to constitute a cause of action, in this, that it did not allege any intent upon the part of the defendant to cheat, injure or defraud the plaintiffs. The rule in regard to the presumption which may be indulged in to sustain a petition, where the objection is made that it does not state facts sufficient to constitute a cause of action,...