State ex rel. Griffith v. Howard

The opinion of the court was delivered by Marshall, J:: The opinion in this action was filed on May 7, 1927 (State, ex rel., v. Howard, 123 Kan. 432, 256 Pac. 172). A motion for rehearing was denied on June 18, 1927. An application for leave to file a motion to modify that opinion and a second motion for rehearing has been filed. In the opinion filed May 7, 1927, the following language is found: “At the hotel Mathews got the defendant in communication with the White Motor Truck Company, of Casper, Wyo., who had a secondhand tractor for sale at $5,000. The defendant talked over the telephone with William Utzinger, of the White Motor Truck Company, concerning the purchase of that tractor. In that conversation the defendant learned that the White Motor Truck Company asked $5,000 for the tractor, but also learned that $4,500 had been named as the price to Mathews.” (p.433.) The statement that the defendant in that conversation learned that $5,000 was asked for the tractor, but that $4,500 had been named as the price to Mathews, is practically conceded by the plaintiff to be incorrect. An examination of the abstract reveals that the conversation between the defendant and Mr. Utsinger did not disclose the price asked for the tractor nor the amount for which'it could be purchased, but there is abundant evidence in the abstract to show he knew that $5,000 was the price asked for the tractor and knew that it could be purchased for $4,500. To the extent herein stated, the [33] former opinion is modified, and with this modification, the judgment is adhered to. Leave to file a motion to modify and for a rehearing is denied. Harvey, J., not sitting.