The opinion of the court was delivered by
Horton, C. J.:
The material facts in this case are as follows : W. W. Sanborn, of Iowa, obtained on the 21st day of May, 1867, letters-patent from the United States for certain improvements in dairy churns. Prior to 1880, the right to sell and use this patent in Kansas was purchased by W. H. Gibbs. In September, 1880, Alfred Hill and Frank W. Alvord purchased of Gibbs an undivided half of the patent-right for the state of Kansas, excepting a few counties, for $1,000, and James S. Warden purchased the other undivided half for $500. In paying for his undivided quarter, Alvord executed his note of $500 _to James S. Warden, dated September 21, 1880, and due 120 days after date, bearing 12 per cent, interest after maturity. J. F. Watson and D. W. Acker [54]*54signed this note as sureties for Alvord. When the note became due it was not paid, and on November 28, 1881, the note was renewed by Watson and Acker, payable eight months after date. George C. Brownell also signed this note. Subsequently, the note was sold and indorsed by James S. Warden to the Exchange National Bank, of Atchison. On the 16th day of March, 1883, the Exchange Bank brought its action against Watson, Acker, Brownell and Warden upon this note, and, upon personal service, obtained judgment against all the parties. On the 23d of July, 1883, this action was commenced by Acker and Watson against Warden for damages, alleging fraud and deceit on the part of Warden in procuring both of these notes referred to. Upon the trial, after the plaintiffs had introduced all of their evidence, the defendant interposed a demurrer thereto, which was sustained by the court. The plaintiffs excepted, and bring the case here for review.
It is claimed that Acker and Watson were induced to sign the note of Alvord to Warden of $500 on September 21,1880, by the false representations of Warden. They claim that he promised to purchase and pay $1,000 for an undivided half of the patent-right; second, that he represented that the sale of the patent-right for two counties in Kansas had been made, which would nearly pay the note; and, third, that he stated the patent-right was valuable and useful, when it was worthless and of no value whatever. It is also claimed that the evidence shows that Warden purchased the patent-right for Kansas on September 17,1880, prior to the time that Alvord executed any note, or had purchased any part thereof. It appears, from the evidence produced upon the trial, that Warden never had any conversation with Acker and Watson prior to their signing the note of September 21,1880; therefore he did not personally by any representations or promises induce them to become the sureties of Alvord. Alvord made some such representations to Acker and Watson, which he said Warden had made to him, and it appears that Warden did make some such statements to Alvord. It is clearly appar[55]*55ent, however, from Alvord’s own statements, that the pretended sales of the patent-right, prior to his purchase, were not relied upon by Alvord, because he cannot remember the amount; and his other evidence shows that he was eager to make the purchase of a quarter interest in the patent-right, if he could raise the purchase-price, or could give a good note therefor. It is evident that Alvord, after a short examination of the dairy churn in operation, and his conversation with Warden, was induced to believe that the patent-right was a valuable one, and that, if properly operated, he could make money out of it. He also was induced to buy an interest in the patent-right because he thought that Warden was a first-class business man and would not take an interest if the patent was not all right. The amount that Warden was to pay for an undivided half was not so important to Alvord as the fact that Warden thought the patent-right of so much value as to become interested therein and the owner of an undivided half thereof. Alvord testified, among other things, as follows:
“Ques. How long were you engaged in examining the patent churn? Ans. Why, not a great while. I think at the time I first saw it he was in the act of churning.
“Q. You thought it was a pretty good thing? A. Yes, sir.
“ Q,. And made up your mind, as I understand you to say, that you would take an interest in it if you could put up your part of the money or the security? A. Yes, sir.
“ Q,. Did you have considerable talk with Mr. Gibbs about the operation of the churn ? A. Not a great deal; no. I had a considerable talk with him as to dealing in patent-rights.
“Q. Did you see the churn operate yourself there at the fair grounds? A. Yes, sir.
“Q,. You saw, then, that you believed it was capable of going? A. Yes, sir.
“Q. And you, in the exercise of your own good judgment, thought it was a pretty good thing at that time? A. Yes, sir.
“Q,. And after that you had a talk with Warden, I understand you, and he told you to get security on this note for $500, subsequent to that time? A. Yes, sir.
“Q. Now, at the time you spoke to Acker and Watson, had they any knowledge about your purchasing this patent-right, so far as you knew? A. Yes, I think they had.
[56]*56“Q. Previous to that time? A. Yes, I think they did.
“Q,. They knew what this note was for? A. Yes.
“Q. They knew that you had given this note for an interest in this patent-right? A. Yes, sir. •
“Q. You explained to them fully what you wanted it for, and asked them to go your security? A. Yes, sir.
“Q. They had no interest in the patent-right themselves? A. No, sir.
“ Q,. They were simply accommodating -you by indorsing your note? A. Yes, sir.
“Q,. That was the way you understood it? A. That was the understanding.
“Q,. And I understand you to say that Mr. Warden was not present when they signed this note? A. No, sir; he was not.
“ Q. They signed this note upon your request and upon your solicitation alone? A. Yes, sir.
“Q,. After these papers were fixed up you started out to sell these patent-rights? A. Yes, sir.
“Q. You sold how many rights? A. I sold two.
“Q,. What did you receive for them? A. I received $160 for one right, and I traded the right of Clay county for a man’s interest in a timber claim.
“Q,. Did you afterward sell the timber claim? A., No, sir; I traded him, besides, a horse or pony that I had.
“Q. What was the timber claim worth? A. Well, I don’t know.
“Q. You got $160 in money for the other? A. I couldn’t have got anything for it, I suppose; I tried to.
“Q. You abandoned it, did you? A. Yes, sir.
“Q. Did you make any other sales? A. No, sir.
“Q,. Was that the money you realized? A. That was all the money I realized.
“Q. And at Yalley Falls, after you had attempted to manufacture this churn unsuccessfully, you threw up the business? A.
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The opinion of the court was delivered by
Horton, C. J.:
The material facts in this case are as follows : W. W. Sanborn, of Iowa, obtained on the 21st day of May, 1867, letters-patent from the United States for certain improvements in dairy churns. Prior to 1880, the right to sell and use this patent in Kansas was purchased by W. H. Gibbs. In September, 1880, Alfred Hill and Frank W. Alvord purchased of Gibbs an undivided half of the patent-right for the state of Kansas, excepting a few counties, for $1,000, and James S. Warden purchased the other undivided half for $500. In paying for his undivided quarter, Alvord executed his note of $500 _to James S. Warden, dated September 21, 1880, and due 120 days after date, bearing 12 per cent, interest after maturity. J. F. Watson and D. W. Acker [54]*54signed this note as sureties for Alvord. When the note became due it was not paid, and on November 28, 1881, the note was renewed by Watson and Acker, payable eight months after date. George C. Brownell also signed this note. Subsequently, the note was sold and indorsed by James S. Warden to the Exchange National Bank, of Atchison. On the 16th day of March, 1883, the Exchange Bank brought its action against Watson, Acker, Brownell and Warden upon this note, and, upon personal service, obtained judgment against all the parties. On the 23d of July, 1883, this action was commenced by Acker and Watson against Warden for damages, alleging fraud and deceit on the part of Warden in procuring both of these notes referred to. Upon the trial, after the plaintiffs had introduced all of their evidence, the defendant interposed a demurrer thereto, which was sustained by the court. The plaintiffs excepted, and bring the case here for review.
It is claimed that Acker and Watson were induced to sign the note of Alvord to Warden of $500 on September 21,1880, by the false representations of Warden. They claim that he promised to purchase and pay $1,000 for an undivided half of the patent-right; second, that he represented that the sale of the patent-right for two counties in Kansas had been made, which would nearly pay the note; and, third, that he stated the patent-right was valuable and useful, when it was worthless and of no value whatever. It is also claimed that the evidence shows that Warden purchased the patent-right for Kansas on September 17,1880, prior to the time that Alvord executed any note, or had purchased any part thereof. It appears, from the evidence produced upon the trial, that Warden never had any conversation with Acker and Watson prior to their signing the note of September 21,1880; therefore he did not personally by any representations or promises induce them to become the sureties of Alvord. Alvord made some such representations to Acker and Watson, which he said Warden had made to him, and it appears that Warden did make some such statements to Alvord. It is clearly appar[55]*55ent, however, from Alvord’s own statements, that the pretended sales of the patent-right, prior to his purchase, were not relied upon by Alvord, because he cannot remember the amount; and his other evidence shows that he was eager to make the purchase of a quarter interest in the patent-right, if he could raise the purchase-price, or could give a good note therefor. It is evident that Alvord, after a short examination of the dairy churn in operation, and his conversation with Warden, was induced to believe that the patent-right was a valuable one, and that, if properly operated, he could make money out of it. He also was induced to buy an interest in the patent-right because he thought that Warden was a first-class business man and would not take an interest if the patent was not all right. The amount that Warden was to pay for an undivided half was not so important to Alvord as the fact that Warden thought the patent-right of so much value as to become interested therein and the owner of an undivided half thereof. Alvord testified, among other things, as follows:
“Ques. How long were you engaged in examining the patent churn? Ans. Why, not a great while. I think at the time I first saw it he was in the act of churning.
“Q. You thought it was a pretty good thing? A. Yes, sir.
“ Q,. And made up your mind, as I understand you to say, that you would take an interest in it if you could put up your part of the money or the security? A. Yes, sir.
“ Q,. Did you have considerable talk with Mr. Gibbs about the operation of the churn ? A. Not a great deal; no. I had a considerable talk with him as to dealing in patent-rights.
“Q. Did you see the churn operate yourself there at the fair grounds? A. Yes, sir.
“Q,. You saw, then, that you believed it was capable of going? A. Yes, sir.
“Q. And you, in the exercise of your own good judgment, thought it was a pretty good thing at that time? A. Yes, sir.
“Q,. And after that you had a talk with Warden, I understand you, and he told you to get security on this note for $500, subsequent to that time? A. Yes, sir.
“Q. Now, at the time you spoke to Acker and Watson, had they any knowledge about your purchasing this patent-right, so far as you knew? A. Yes, I think they had.
[56]*56“Q. Previous to that time? A. Yes, I think they did.
“Q,. They knew what this note was for? A. Yes.
“Q. They knew that you had given this note for an interest in this patent-right? A. Yes, sir. •
“Q. You explained to them fully what you wanted it for, and asked them to go your security? A. Yes, sir.
“Q. They had no interest in the patent-right themselves? A. No, sir.
“ Q,. They were simply accommodating -you by indorsing your note? A. Yes, sir.
“Q,. That was the way you understood it? A. That was the understanding.
“Q,. And I understand you to say that Mr. Warden was not present when they signed this note? A. No, sir; he was not.
“ Q. They signed this note upon your request and upon your solicitation alone? A. Yes, sir.
“Q,. After these papers were fixed up you started out to sell these patent-rights? A. Yes, sir.
“Q. You sold how many rights? A. I sold two.
“Q,. What did you receive for them? A. I received $160 for one right, and I traded the right of Clay county for a man’s interest in a timber claim.
“Q,. Did you afterward sell the timber claim? A., No, sir; I traded him, besides, a horse or pony that I had.
“Q. What was the timber claim worth? A. Well, I don’t know.
“Q. You got $160 in money for the other? A. I couldn’t have got anything for it, I suppose; I tried to.
“Q. You abandoned it, did you? A. Yes, sir.
“Q. Did you make any other sales? A. No, sir.
“Q,. Was that the money you realized? A. That was all the money I realized.
“Q. And at Yalley Falls, after you had attempted to manufacture this churn unsuccessfully, you threw up the business? A. Yes, sir.
“Q,. Subsequent to that, you and Acker and Watson were sued on the note, were you not, in this court? A. I believe we were.”
The evidence of W. H. Gibbs shows that he sold the patent-right to Hill, Alvord, and Warden; that an undivided half was for Hill and Alvord, and the other undivided half for Warden; that Warden advanced the money for the undivided half purchase by Hill and Alvord, less the discount, [57]*57and that Warden paid the balance of the $1,500 for which the whole patent-right was sold for Kansas, excepting a few counties. His evidence also shows that the patent-right purchased by Hill, Alvord and Warden is a good and- useful invention, and in skillful hands works well. All of the evidence tends to show that Warden believed the patent-right a valuable one, and also believed, at the time he associated with him Hill and Alvord in the purchase of it, that money could be made in the sale of the patent-right in Kansas. There is no evidence showing or tending to show that Warden ever supposed or believed that the patent-right was worthless. It did not appear upon the trial that either Acker or Watson was induced to sign the first note by the fraud or deceit of Warden. The renewal, or second note, which was given to take up the first note, was executed long after all the foregoing facts were known to Alvord and Watson, and the only false statement which is alleged against Warden concerning the execution of the second note is the statement or representation that Alvord got $500 from him at his bank on the first note. The evidence shows that the amount of this note, less discount, was turned over by Warden to Gibbs; and, although Alvord did not in person obtain $500 at the counter of Warden’s bank, yet the $500, less discount, in money was actually paid to Gibbs by Warden for the benefit of Alvord. Warden may have made some statements in the matter which were not wholly true, but it is not every false statement that is actionable. It is immaterial whether Warden had paid to Alvord at his bank counter the $500, or had paid it to Gibbs for Alvord. (In re Cameron, 44 Kas. 64.) As Gibbs sold the patent-right for $L,500, it is possible that Alvord paid more than he ought to have paid for an undivided quarter, or that, on account of the payment of $500, he is entitled to a larger share than an undivided quarter of the patent-right; but no such fraud or deceit is shown as to entitle the plaintiff to recover upon the testimony disclosed.
The judgment of the district court will be affirmed.
All the Justices concurring.