Cavender v. Roberson

The opinion of the court was delivered by HobtoN, C. J.: Upon the trial, the defendants produced as a witness one D. L. Nesbit, who testified, among other things, “that he had been in the grocery business for twenty years; that he knew the stock of groceries kept by Kimbrough <fc Trice, who failed in April or May, 1881, and whose stock of groceries was subsequently purchased by Green Cavender; that he went through the stock and examined it; that it was old and shelf-worn; that he did not consider the stock worth to exceed fifty cents on the dollar.” He then stated that he knew the prices generally of groceries. Pie was requested to examine the bill of goods bought by the defendants, and after looking over the same, testified “ that he thought he knew what the market value of some of the goods was.” He further testified “that he could not state the value of the coffee, mackerel, tea, starch and tobacco, because there are different grades of such goods, and the bill did not show what grades they were; but he knew the prices of the different grades of those kinds of goods.” The plaintiff then objected to evidence of value, because incompetent and irrelevant, and be [631] cause tbe market value was within the reach of all; and further, because the stock of groceries sold to the defendants was old, and the witness was permitted to testify as to the value of new goods. There was no error in the admission of this evidence. Nesbit had seen and examined the goods in stock — not the particular goods furnished, but the general stock — and was a competent witness concerning the valué of the same. The answer alleged that Green Cavender “ represented to the defendants that his goods in stock were fresh, and of first-class quality, and that, as he was about going out of the grocery trade, he would sell the defendants a stock of goods suitable for their trade at prices greatly below the current cost prices, and greatly lower than the defendants could obtain the goods elsewhere.” As the defendants further alleged in their answer that they relied upon these representations in accepting the stock of groceries shipped them, and in executing their notes therefor, the value of the stock sold was a material issue in the case, and the concession by the plaintiff that the stock selected, put up, billed, and shipped out by Green Cavender to the defendants was an old one, is very favorable to the claim of the defendants. The case of Graffenstein v. Epstein, 23 Kas. 443, is cited that evidence of the market value of the stock of goods shipped ought not to have been received. That case is not in point. The principle recognized in that case is that— “A misrepresentation as to the market price of an article of general commerce, made falsely and fraudulently by one party to induce a sale, and relied upon by the other, will not avoid a contract therefor, when there are no circumstances making it the special duty of the one party to communicate the knowledge he possesses, and none giving him the peculiar means of ascertaining such market price.” Here the seller agreed to sell a stock of staple groceries suitable for the defendants’ trade, of first-class quality, at prices greatly below the current rates for such goods. The defendants- relied upon these representations, and permitted the seller [632] to select and ship the goods. Therefore, evidence tending to show that the stock of goods had been fraudulently billed, and charged at current rates, and in some instances above current rates, was relevant. (Lord v. French, 61 Me. 420.) It is claimed that the court committed error in giving and refusing instructions. The third instruction asked for was properly refused, because it virtually took the case away from the jury and directed a verdict for the plaintiff without regard to the defense made in the action. The fourth instruction asked for ought not to have been given, because it did not embrace the law of the case. (Lord v. French, supra.) The fifth instruction asked for and refused was to the effect that if Green Cavender and the defendants had a settlement about their matters in dispute, and if the note in controversy was given in pursuance of such settlement, the defendants were bound by the settlement, except for mistake or fraud. The sixth instruction was fully covered by the charge of the court, in the following language: “It also appears that on or about June 15, 1882, the defendants took up said promissory note of $517.07, given January 2, 1882, and gave to said Green Cavender the instrument in controversy, and also another instrument, being a promissory note for $278.16, dated June 15, 1882, and payable .fifteen days after date, with interest at ten per cent, per annum after maturity. Said Green Cavender claims that these two instruments were given to take up said note of January 2, 1882, and also to settle all accounts between him and the ■ defendants up to said time. If you find that such was the case, and that plaintiff has succeeded to the rights of Green Cavender, and that said instrument was intended to be payable in fifteen days, then plaintiff is entitled to recover the full amount of the face of said instrument, with interest thereon, unless defendants have shown by a preponderance of evidence that there was a mistake in the computation, or that said settlement was obtained by some fraud or imposition on the part of said Green Cavender. If a mistake was made in the computation, you should correct it in your verdict, if you have evidence sufficient for the purpose; but if you find that the defendants at the time of giving said two instruments and the making of said alleged settlement knew the quality and prices [633] of the goods that they had obtained from said Green Caven-der, and that they were giving said instruments in settlement for the same, then they ought not now to be assisted by the jury in undoing their work and setting aside their settlement on the ground of the quality or the prices of the goods.” The sixth instruction contained the intimation that Green Cavender agreed to sell the groceries shipped to the defendants at 20 per cent, less than they could be purchased for elsewhere. This instruction was misleading, because the evidence did not fully support it. J. M. Roberson, one of the defendants, testified that Green Cavender “said he would sell the goods to me at from 15 to 20 per cent, less than I could get them elsewhere.” Joseph A. Hamm testified that Cavender said to J. M. Roberson (the purchaser of the goods) “ that he-was closing out, and would sell to him the bill of goods at 15 to 20 per cent, less than ■ he could buy elsewhere, and Roberson said he would buy at these terms, and would leave it to Cavender and me as to what he wanted, and would leave it to-us to select the goods.” The evidence therefore shows that Green Cavender agreed to sell the stock of groceries charged to the defendants from 15 to 20 per cent, less than they could buy them elsewhere,, but not at 20 per cent. less. The jury evidently followed closely the intimation of the court in their verdict and special findings, because the sixth finding of fact is as follows: “Question: Did said Roberson rely on said Cavender to put the prices of said goods at 20 per cent, lower than the current rates for such goods from other dealers? Answer: Yes.” We should also add that there was no statement in the answer-alleging that Green Cavender agreed to furnish goods such as he had in his own stock at 20 per cent, less than they could be purchased for elsewhere. Counsel for defendants object to-the consideration of this instruction and the finding based thereon, because they say the case-made does not purport to-contain all the evidence. The case does, however, show that it contains the substantial parts of the evidence, and we construe this to mean that it contains in substance all the evidence [634] offered upon the trial, although it is not written out in the record in minute detail. The defendants were not restricted to their right to rescind the' contract and l’eturn the goods. (Weybrich v. Harris, 31 Kas. 92; Lord v. French, supra; Wheeler & Wilson Mfg. Co. v. Thompson, ante, p.491.) Tt is not necessary to dwell upon the other questions in the case. If the jury had returned in their special findings the actual value of the goods furnished by Cavender to the defendants, we might have corrected the judgment of the district court without reversing the same, by the addition of five per cent, upon the value of said goods; but to question 12, which was as follows: “ What was the actual value of all the goods and property furnished by Cavender to Roberson?” the jury answered, “Can’t tell.” On account of the erroneous and misleading instruction, which was given without full support of the evidence, the judgment of the district court must be reversed. All the Justices concurring.