Woods v. Nicholas

• Decision Date: 09 May 1914
• Docket Number: 18,109
• Citation: 140 P. 862,92 Kan. 258
• Parties: C. E. WOODS, Appellee, v. G. L. NICHOLAS, Appellee, and L. W. PARKER, Appellant
• Court: Kansas Supreme Court

140 P. 862

92 Kan. 258

C. E. WOODS, Appellee, v. G. L. NICHOLAS, Appellee, and L. W. PARKER, Appellant

No. 18,109

Supreme Court of Kansas

May 9, 1914

Decided January, 1914.

Appeal from Seward district court; WILLIAM H. THOMPSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Amendment--Correction of Mistake--Liberally Allowed. Amendments for the purpose of correcting mistakes or defects in pleadings that would promote justice and not substantially change the claims or defenses of parties should be liberally allowed.

2. PETITION STATES CAUSE OF ACTION--Deceit and Fraud. The averments of the amended petition examined and held to state a cause of action for the deceit and fraud of the defendant.

3. SALES--Mere Expression of Opinion Not Fraud. A mere puffing statement by the seller as to the quality of an article sold or exchanged is generally regarded as an expression of opinion and of itself does not constitute fraud as against the buyer.

4. SALES--When Rule of Caveat Emptor Applies. It is a general rule that if an article is sold for any and all purposes for which it is adapted, and not by a manufacturer or producer for a particular purpose, and it is open to inspection by the buyer, the rule of caveat emptor applies.

V. H. Grinstead, and Arthur C. Scates, both of Liberal, for the appellant.

F. S. Macy, of Liberal, for appellee C. E. Woods.

OPINION

JOHNSTON, C. J.

In an action brought by C. E. Woods he charged that L. W. Parker had deceived and defrauded him by selling and transferring to him two promissory notes executed in his favor by G. L. Nicholas, one for $ 327.50 and the other for $ 300, due at different times, and representing that the notes were secured by a mortgage upon an engine and certain implements which were not otherwise encumbered, when in fact there was a prior mortgage on the property in an amount about equal to its value. In 1907 Parker purchased the engine from Hart-Parr Company, and to secure the payment of the purchase price gave that company a mortgage thereon for $ 1500. He paid $ 1000 of that indebtedness, and later sold the engine and some plows to Nicholas, who executed the two notes mentioned in favor of Parker; and he also executed a mortgage on the engine and plows to secure these notes, which contained a clause that the property was unencumbered. Shortly afterwards Parker transferred the Nicholas notes and the mortgage to Woods, representing that the notes were well secured by a first mortgage when there was in existence a mortgage on the property given by Parker himself to secure an unpaid note of $ 500. At the instance of Parker, Grage, who was his son-in-law, obtained this $ 500 note, and later Parker as the agent of Grage foreclosed the first mortgage and absorbed the security which had been given to Woods. Woods began this action, basing it on the fraud and deceit of Parker, and named Nicholas, who was alleged to be insolvent, as a defendant in the case. Parker answered admitting the existence of the unpaid note of $ 500 and the prior mortgage which had been given to secure its payment, and he also alleged that Woods had turned over to him as part consideration for the notes an old worn-out automobile, representing it to be as good as a new one, and he therefore asked for judgment against Woods for the sum of $ 600.

There is complaint that Woods was permitted to file an amended petition after the trial had been commenced, and also that the petition so amended failed to state a cause of action for fraud and deceit. No error was committed in either respect. Amendments for the purpose of correcting mistakes of any kind in pleadings, which would be in furtherance of justice and would not substantially change the claims or defenses, should be liberally granted. (Civ. Code, § 140; Rogers v. Hodgson, 46 Kan. 276, 26 P. 732; Deter v. Jackson, 76 Kan. 568, 92 P. 546; Malone v. Jones, 91 Kan. 815, 139 P. 387; Wait v. McKibben, post.)

The amendment made by Woods only amplified the averments of his original petition, which itself stated a right of recovery on the ground of fraud. While Woods set out the notes which had been transferred to him by Parker indorsed as "without recourse," it was further stated that he was induced to take them by the representations of...