Hinchey v. Starrett

Citations

• 91 Kan. 181
• 137 P. 81
• 1913 Kan. LEXIS 357

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Demurrer Sustained — Motion for New Trial — . Granted at Succeeding Term — No Error. The pleading, while open to criticism for confusion of theories, stated a cause of action. The evidence, if undisputed, showed a right to recover in some amount. The court sustained a demurrer to the evidence and rendered judgment for costs. Within three days a motion for a new trial was filed, which was taken under advisement until the next term and then granted. Held, that • the latter order was proper.</p> <p>2. Fraudulent Representation — Statement of Existing Fact. It was alleged that by falsely and fraudulently pretending that one oí the defendants was ready and anxious and financially able to take a certain tract of land at $1600 cash, although worth more, the plaintiff was defrauded into trading to the other for such land an automobile worth that sum. Held, that such pretence concerned an existing condition and was not a mere promise or opinion.</p> <p>3. - Measure of Damages. In such situation the measure of damages is the difference between the value of the automobile and the value of the land taken in exchange therefor.</p> <p>4. Motion — To Strike Out Allegation of Answer — Averments of Petition Construed. After extended pleadings had been filed and amended a motion to strike a certain allegation from the answer recited that the petition showed that the action was one to recover damages for misrepresentation of the character and value of the land, which motion was overruled. Held, that such expression thus used can not rightfully be regarded as an election to proceed upon the basis of the represented value of the land instead of the sum agreed to be paid therefor.</p> <p>5. Joint Liability — For Fraudulent Representations. The • plaintiff testified to the reiteration by both defendants of certain fraudulent representations, but on cross-examination stated that the last repetition by one of them was what induced him to make t