Burns v. Mahannah

Opinion by Simpson, C.: The motion for a new trial assigned two reasons for setting aside the verdict of the jury. One of these — that with reference to the verdict not being sustained by the evidence — comes within a rule that has been stated so often that its repetition has become monotonous; the other is for errors of law occurring at the trial. While there is some [89] general criticism as to some of the instructions given by the court, the vigorous fight is confined to the action of the court in refusing to allow the plaintiff in error to prove that corn had very suddenly advanced in price, on Thursday and Friday of October 12 and 13, 1881; and that the defendant in error knew that fact, and the plaintiff in error did not; and that the defendant in error had told the witnesses that he was going to buy the corn of the plaintiff in error. In the course of the examination of the plaintiff in error as a witness, he had testified that before he made the contract for the sale of corn, he had inquired of the defendant in error what the price of corn was at Wichita, his place of market, and had been told by the defendant in error that it was from 18 to 22 cents per bushel, and that in making the contract he had relied on that statement. Taking this statement of the plaintiff in error, together with the offer to prove the other facts, and they raise this question, stated in the strongest possible manner for the plaintiff, “ whether a false and fraudulent statement or representation as to the market-price of a commodity of general commerce, made by a purchaser who knows, to a seller who does not know, to induce a sale more advantageous to a purchaser than he could otherwise get, the representation being relied on by the seller to his damage, avoids the contract of sale?” This question is answered in the negative by this court in the case of Graffenstein v. Epstein, 23 Kas. 443. This is a well-considered case, as shown by an elaborate opinion reviewing many authorities, and stating every phase of the question, and in our judgment is controlling as to the contention presented here. There is a remarkable similarity in the two cases: both hinge on the representation made by the purchaser to the seller, and the reliance of the seller on the truth of the statement as to the market-price of the commodity at the time the contract of sale was entered into, and the purchaser’s knowledge of the advance in prices, and the seller’s ignorance of it. This case clearly comes within the principle announced in the reported case, and that is sustained by the weight of current authority on the question. [90] We have considered this question as if the representations as to the market-price of the corn had been made by the defendant in error, as claimed by the plaintiff in error; but the jury evidently took the other view in arriving at their verdict, and this, eliminated from consideration, would leave only the ruling as to the offer to prove about the sudden rise in the price, that was known to the purchaser and not to the seller. But in any view to be taken on the state of facts recited in the record, we discover no material error that will justify reversal. It is recommended that the judgment be affirmed. By the Court: It is so ordered. Horton; C. J., and Johnston, J., concurring. Valentine, J., dissenting.