Schoen v. Sunderland

• Decision Date: 07 July 1888
• Citation: 18 P. 913,39 Kan. 758
• Parties: LOUIS A. SCHOEN v. N. S. SUNDERLAND
• Court: Kansas Supreme Court

18 P. 913

39 Kan. 758

LOUIS A. SCHOEN v. N. S. SUNDERLAND

Supreme Court of Kansas

July 7, 1888

Error from Greenwood District Court.

ACTION by Sunderland against Schoen to recover damagesresulting from the sale by defendant to plaintiff of certain land, to wit the southwest quarter of section 4, township 13, range 16, in Ellis county, Kansas. Plaintiff alleged that defendant, to induce him to buy said land, and with the intent to cheat and defraud him, made to him certain false statements concerning it, defendant well knowing the same to be false. Trial at the December term, 1886, and judgment for plaintiff for $ 594.85 and for costs taxed at $ 68.95. The defendant brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

R. C Summers, for plaintiff in error.

F. A. Brogan, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.

This action was tried by a jury; verdict and judgment thereon for defendant in error, plaintiff below, in the sum of $ 594.85. The defendant complains in this court of the rulings on the admission and rejection of evidence over his objection, and the refusal to grant a new trial. The action arose from the following facts: In April, 1885, the plaintiff sold the defendant some lots in Kansas City, Mo., and took in part payment therefor a farm of 160 acres in Ellis county, Kansas. The plaintiff lived at Larned, Kansas, and the defendant in Kansas City, Mo. The trade was brought about through Jackson & Bordon, real-estate agents in Kansas City; the defendant having spoken to them about wishing to trade, they wrote a letter to plaintiff concerning his lots in Kansas City. Up to this time these agents did not hold any property of either party to sell. The letter is as follows:

"KANSAS CITY, MO., Mar. 30, 1885.

"N. S. Sunderland, Esq., Larned, Kansas -- DEAR SIR: Have you sold your 49 ft. on Independence Ave. yet? We have a party who wishes to purchase. He has 160 acres of land in Ellis county, Kansas, 5 miles from Russell, 6 miles from Walker and Victoria, all R. R. towns; all good tillable land, 80 acres under cultivation; 4-room house, Kansas barn, well, &c. S.W. 1/4 sec. 4, town. 13, R.16. He holds land at $ 2,000. If the land will suit you, what terms can you make him on balance at $ 80 per ft., $ 7,520 for lots?

"Hoping to hear from you soon, we are respectfully yours,

JACKSON & BORDON, (700 Delaware St.)"

In answer to that letter the plaintiff went to Kansas City himself, and a trade was made and the land exchanged, a deed being given him by Schoen and wife to Sunderland, and Sunderland conveying to plaintiff the Kansas City lots. At the trial, plaintiff, over objection of defendant, proved that Schoen, the defendant, stated to him as a part of the inducement to trade, that the farm in Ellis county was all tillable land, and that twenty acres of it were under cultivation; that there was a four-room house Kansas stable, and a well upon it. It was conclusively proven that there was no house, the one formerly upon the land having been burnt a long time before this sale was made; that the Kansas stable had fallen in; that there never had been a well upon the premises; that at one time quite a number of acres of it had been under cultivation, but at the time of the sale only two acres were under cultivation, and that one-half of the land was poor and covered with stones and gumbo, and was rough, uneven and unfit for tillage. The defendant contends that this testimony ought not to have been introduced, because there was a written contract in regard to the land; and in the absence of any allegation of fraud, accident or mistake in the petition, such testimony was not admissible. During the negotiations a contract or memorandum was signed. ...