Elwood v. Tiemair

Citations

• 91 Kan. 842
• 139 P. 362
• 1914 Kan. LEXIS 134

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Action for Commission — Allegation of Fraud — Failure-of Proof. If a party who alleges fraud and who has the burden of proof on the proposition does not establish it by a preponderance of the evidence the issue must be found, against him.</p> <p>2. Contract — Executed after Knowledge of Alleged Fraud — ■ Waiver. If a party who is induced to enter into- a contract by misrepresentations of fact gains knowledge of the fraud before the contract is executed, and thereafter deliberately proceeds to perform the contract on his part and to exact performance of the other party, he will waive the fraud and affirm the voidable contract, and especially is this true where the defrauded party, having full knowledge of the fraud, enters into a new contract recognizing the validity of the first one and in which he promises to do the things that he had promised to do in the original contract.</p> <p>S. Special Findings — Overcome Verdict — Verdict Set Aside — ■ Judgment. The special findings and - undisputed facts in the case examined and held to overcome the general verdict and to require the entry of judgment in favor of appellant.</p>