Avery Planter Co. v. Murphy

Court of Appeals of Kansas

Avery Planter Co. v. Murphy

49 P. 626, 6 Kan. App. 29, 1897 Kan. App. LEXIS 252

CourtCourt of Appeals of Kansas

DecidedJuly 16, 1897

DocketNo. 215

StatusPublished

This text of 49 P. 626 (Avery Planter Co. v. Murphy) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avery Planter Co. v. Murphy, 49 P. 626, 6 Kan. App. 29, 1897 Kan. App. LEXIS 252 (kanctapp 1897).

Pincite

Opinion

Wells, J.

The agent O’Connell, being upon the witness stand, was asked by the plaintiff: "In making that settlement with McCarthy, will you please state whether or not you relied on the property statement contained in the order and sent in by the Murphys? ” This was objected to and the objection was sustained. The question asked was clearly within the issues of the case and the objections 'made should not have been sustained.

The next error complained of is the overruling of the objection of the plaintiffs to certain portions of the testimony of Mooney, a witness for the defendant. These questions asked for the market value of the engine about September 20, 1890. This objection should have been sustained, as the property was bought about the first of July, and the plaintiff had nothing to do with it afterwards until about November 1, 1890. Its market value at any given time during that interval has nothing whatever to do with this [32]*32case. The defendant in his brief says that September 20, 1890, was about the time that the plaintiff in error took possession of this engine after having sold it to McCarthy. We do not find any evidence of the correctness of that statement; on the contrary, the defendant in his answer fixes the date at which the plaintiff took possession as on or about November, 1890 ; and the witness O’Connell, who took possession of it for the plaintiff, testified that it was about the last of October or the first of November when he. first learned of the financial embarrassment of the purchaser. But defendants in error in their brief say : “A further fact which made this testimony competent was that the property was taken by the Avery Planter Company about the first of November, 1890, and was not sold until January 3, 1891.” We fail to see what relevancy the market value of the property on September 20 had to the case.

We do not consider it necessary to examine in detail all the errors alleged, as a new trial will -have to be ordered and the same errors are not likely to occur again. But we desire to say that,, in our opinion the trial court erred both in giving and refusing instructions as to the duties of the defendants in error in ascertaining the truthfulness of the statement of the purchaser. In the defendants’ contract of agency they agreed ‘ ‘ to verify from the record ánd guarantee to be correct the property statements of the would-be purchaser.” We do not think this contract is fulfilled by an inquiry of the register of deeds or some deputy of his, as stated by the instruction given by the court. Neither do we think that their obligations under such contract were complied with by remaining in ignorance and not seeking to find out the facts, as indicated in instruction number three. On the [33]*33contrary, the duty was enjoined upon them to not only make a personal examination of the record, as they expressly agreed to do, but to use all other reasonable means to find out the facts and then truthfully report them.

The judgment of the court below will be reversed, and a new trial ordered.

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Wells, J.

The agent O’Connell, being upon the witness stand, was asked by the plaintiff: "In making that settlement with McCarthy, will you please state whether or not you relied on the property statement contained in the order and sent in by the Murphys? ” This was objected to and the objection was sustained. The question asked was clearly within the issues of the case and the objections 'made should not have been sustained.

The next error complained of is the overruling of the objection of the plaintiffs to certain portions of the testimony of Mooney, a witness for the defendant. These questions asked for the market value of the engine about September 20, 1890. This objection should have been sustained, as the property was bought about the first of July, and the plaintiff had nothing to do with it afterwards until about November 1, 1890. Its market value at any given time during that interval has nothing whatever to do with this [32]*32case. The defendant in his brief says that September 20, 1890, was about the time that the plaintiff in error took possession of this engine after having sold it to McCarthy. We do not find any evidence of the correctness of that statement; on the contrary, the defendant in his answer fixes the date at which the plaintiff took possession as on or about November, 1890 ; and the witness O’Connell, who took possession of it for the plaintiff, testified that it was about the last of October or the first of November when he. first learned of the financial embarrassment of the purchaser. But defendants in error in their brief say : “A further fact which made this testimony competent was that the property was taken by the Avery Planter Company about the first of November, 1890, and was not sold until January 3, 1891.” We fail to see what relevancy the market value of the property on September 20 had to the case.

We do not consider it necessary to examine in detail all the errors alleged, as a new trial will -have to be ordered and the same errors are not likely to occur again. But we desire to say that,, in our opinion the trial court erred both in giving and refusing instructions as to the duties of the defendants in error in ascertaining the truthfulness of the statement of the purchaser. In the defendants’ contract of agency they agreed ‘ ‘ to verify from the record ánd guarantee to be correct the property statements of the would-be purchaser.” We do not think this contract is fulfilled by an inquiry of the register of deeds or some deputy of his, as stated by the instruction given by the court. Neither do we think that their obligations under such contract were complied with by remaining in ignorance and not seeking to find out the facts, as indicated in instruction number three. On the [33]*33contrary, the duty was enjoined upon them to not only make a personal examination of the record, as they expressly agreed to do, but to use all other reasonable means to find out the facts and then truthfully report them.

The judgment of the court below will be reversed, and a new trial ordered.

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Bluebook (online)

49 P. 626, 6 Kan. App. 29, 1897 Kan. App. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-planter-co-v-murphy-kanctapp-1897.