Grist v. Sutton

121 P. 1108, 86 Kan. 764, 1912 Kan. LEXIS 377

• Court: Supreme Court of Kansas
• Decided: March 9, 1912
• Docket: No. 17,509
• Status: Published

Opinion

The opinion of the court was delivered by

West, J.:

The defendant advertised a sale of pedigreed swine, the catalogue mentioning Baroness Queen as sired by Baron Masterpiece. The plaintiff attended the salé, bought Baroness Queen for $200, and afterward discovered that she was not sired by Baron Masterpiece but by a different and less desirable animal, and sued for the return of his money. The defendant admitted a mistake in the published pedigree,: but alleged that the auctioneer and others announced such mistake at the sale and that the correct pedigree. would be furnished to the purchaser later. This the plaintiff denied, and on this there was a sharp conflict of testimony, the jury finding in favor of the plaintiff. The defendant appeals and his sole complaint is that the verdict was contrary to the evidence.

We have read the testimony set forth in the abstract, and a verdict for either party would have been well sustained thereby. It is argued that as the evidence on the part of the defendant was positive that such announcement was made and that on the part of the plaintiff was merely that such announcement was not heard, the former so overweighs the latter as to leave the verdict without support. The plaintiff testified that he was at the sale all day and there was nothing said about the pedigree being wrong, that he did not know of the error until some time afterward. On cross-examination' he stated that if any announcement was made he did not hear it, although he was sitting about twenty-five feet from the auctioneer, where he remained during the entire sale. Similar testimony was given by other witnesses.

The jury having determined a disputed question of fact upon conflicting evidence we find no error in the judgment based upon such verdict, and as we can not retry such question of fact the judgment is affirmed.