Opinion by
Green, C.:
Barton Bros, sued W. W. Robbins, in the district court of Kingman county, to recover $624.84, damages for alleged false and fraudulent representations concerning the financial standing of H. G. Gorton. The plaintiffs alleged in their amended petition —
“That on or about the 15th day of January, 1888, they were induced by the following false and fraudulent representations of the defendant, who was at the time a banker at Norwich, Kas., in regard to the financial standing of one H. G. Gorton, made to the agents and servants of the plaintiffs, to sell and. ship said H. G. Gorton a bill of goods to the amount of $624.84; that said false and fraudulent representations were as follows, to wit: ‘I consider H. G. Gorton perfectly good for a bill of goods to the amount of $624.84; H. G. Gorton is safe;’ that defendant well knew at the time of making said representations to the agents and servants of the plaintiff that said H. G. Gorton was not able to pay for said goods, and was not fit to be trusted on credit, and that the said H. G. Gorton was, at the time of making said purchase of said stock of goods, insolvent and wholly irresponsible financially, and was at the time of making representations by defendant to the agents and servants of the plaintiffs aforesaid, and was known to the defendant at the time to be so. . . . That by reason of which said false and fraudulent representations plaintiffs have been damaged in the sum of $624.84.”
The plaintiffs alleged that they had been unable to collect [125]*125anything from Gorton, and that by reason of said false and fraudulent representations they had been damaged in the sum of $624.84, for which they asked judgment. To this amended petition, a general denial was filed.
A trial by the court and a jury was had upon the issues thus joined, and a verdict was returned in favor of the plaintiffs for the amount claimed. A motion for a new trial was overruled, and judgment was entered upon the verdict. The plaintiff' in error brings the case to this court upon numerous assignments of error, which we will now consider.
The ruling of the district court is first challenged in permitting any evidence to be offered by the plaintiffs, for the reason that the amended petition did not state facts sufficient to constitute a cause of action, in this, that it did not allege any intent upon the part of the defendant to cheat, injure or defraud the plaintiffs. The rule in regard to the presumption which may be indulged in to sustain a petition, where the objection is made that it does not state facts sufficient to constitute a cause of action, after the issues have been made by answer, is quite well settled; and it has been held that a petition should be construed liberally, for the purpose of sustaining it. (The State v. School District, 34 Kas. 237; Hazelton v. Union Bank, 32 Wis. 34.) The petition alleged that the defendant knew at the time he made the representations that H. G. Gorton was not able to pay for the goods, and was not fit to be trusted. It is argued that the objection to the introduction of evidence should have been sustained because the petition did not allege that the plaintiff's relied upon the statements said to have been made. The petition alleged:
“And by reason of said false and fraudulent representations of said defendant, plaintiffs sold and shipped said bill of goods to H. G. Gorton, giving him credit therefor, and said Gorton has failed and refused to pay the plaintiffs the amount of said goods.”
We are of the opinion that the allegations are sufficient, especially when challenged after answer.
[126]*126The further objection is made, that the statement charged in the petition, “I consider H. G. Gorton perfectly good for a bill of goods to the amount of $624.84; H. G. Gorton is safe,” is a matter of opinion, and not a statement of a fact. It is true that the mere expression of an opinion is no fraud, though it be false. “The question,” says Chief Justice Marshall, in Russell v. Clark’s Executors, 9 Cranch, 69, “how far merchants are responsible for the character they give each other is one of much delicacy, and of great importance to the commercial world. That a fraudulent recommendation (and a recommendation known at the time to be untrue would be deemed fraudulent) would subject the person giving it to damages sustained by the person trusting to it, seems now to be generally admitted.”
The case of Pasley v. Freeman, 3 Term Rep. 51, recognizes and establishes this principle:
“Indeed, if an act, in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of jurisprudence is more defective than has hitherto been supposed.”
We think the allegations of the petition bring it within the rule stated in 5 Am. & Eng. Encyc. of Law, page 328:
“If a party makes representations susceptible of knowledge in such a way as to impress upon the other party the truth of such assertion, but knows that they are false, with the intent that the other party shall rely upon them, in case the other party acts upon these representations, it is fraud.” (Wakeman v. Dalley, 51 N. Y. 27; Hazard v. Irwin, 18 Pick. 95.)
Giving the petition the liberal construction which the law says it shall receive, when challenged after answer by an objection to the evidence, we think it was sufficient.
It is next urged that the court erred in admitting the deposition of T. F. Byrnes, for the reason that the conversations detailed by the witness concerning N. E. Gorton had no connection with H. G. Gorton. The witness stated that he went [127]*127to Norwich in February, 1888, to collect a bill for the firm of C. H. Fargo & Co. against N. E. Gorton. He then went on to detail a conversation had with, the defendant concerning the financial standing of N. E. Gorton, but did not connect N. E. Gorton with H. G. Gorton. They may be one and the same, but it nowhere appears in the deposition that they are the same person. An examination of the deposition satisfies us that the evidence is of such a character as to have influenced the jury. The witness testified that he asked N. E. Gorton to make him a financial statement, which showed him to be solvent; that he asked Robbins if N. E. Gorton was all right, and was assured that he was. We are of the opinion that the objection of the defendant below to the admission of the deposition should have been sustained; that the admission of the evidence was prejudicial to the rights of the defendant.
The last error which we shall notice is the fifth instruction of the court, which reads:
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Opinion by
Green, C.:
Barton Bros, sued W. W. Robbins, in the district court of Kingman county, to recover $624.84, damages for alleged false and fraudulent representations concerning the financial standing of H. G. Gorton. The plaintiffs alleged in their amended petition —
“That on or about the 15th day of January, 1888, they were induced by the following false and fraudulent representations of the defendant, who was at the time a banker at Norwich, Kas., in regard to the financial standing of one H. G. Gorton, made to the agents and servants of the plaintiffs, to sell and. ship said H. G. Gorton a bill of goods to the amount of $624.84; that said false and fraudulent representations were as follows, to wit: ‘I consider H. G. Gorton perfectly good for a bill of goods to the amount of $624.84; H. G. Gorton is safe;’ that defendant well knew at the time of making said representations to the agents and servants of the plaintiff that said H. G. Gorton was not able to pay for said goods, and was not fit to be trusted on credit, and that the said H. G. Gorton was, at the time of making said purchase of said stock of goods, insolvent and wholly irresponsible financially, and was at the time of making representations by defendant to the agents and servants of the plaintiffs aforesaid, and was known to the defendant at the time to be so. . . . That by reason of which said false and fraudulent representations plaintiffs have been damaged in the sum of $624.84.”
The plaintiffs alleged that they had been unable to collect [125]*125anything from Gorton, and that by reason of said false and fraudulent representations they had been damaged in the sum of $624.84, for which they asked judgment. To this amended petition, a general denial was filed.
A trial by the court and a jury was had upon the issues thus joined, and a verdict was returned in favor of the plaintiffs for the amount claimed. A motion for a new trial was overruled, and judgment was entered upon the verdict. The plaintiff' in error brings the case to this court upon numerous assignments of error, which we will now consider.
The ruling of the district court is first challenged in permitting any evidence to be offered by the plaintiffs, for the reason that the amended petition did not state facts sufficient to constitute a cause of action, in this, that it did not allege any intent upon the part of the defendant to cheat, injure or defraud the plaintiffs. The rule in regard to the presumption which may be indulged in to sustain a petition, where the objection is made that it does not state facts sufficient to constitute a cause of action, after the issues have been made by answer, is quite well settled; and it has been held that a petition should be construed liberally, for the purpose of sustaining it. (The State v. School District, 34 Kas. 237; Hazelton v. Union Bank, 32 Wis. 34.) The petition alleged that the defendant knew at the time he made the representations that H. G. Gorton was not able to pay for the goods, and was not fit to be trusted. It is argued that the objection to the introduction of evidence should have been sustained because the petition did not allege that the plaintiff's relied upon the statements said to have been made. The petition alleged:
“And by reason of said false and fraudulent representations of said defendant, plaintiffs sold and shipped said bill of goods to H. G. Gorton, giving him credit therefor, and said Gorton has failed and refused to pay the plaintiffs the amount of said goods.”
We are of the opinion that the allegations are sufficient, especially when challenged after answer.
[126]*126The further objection is made, that the statement charged in the petition, “I consider H. G. Gorton perfectly good for a bill of goods to the amount of $624.84; H. G. Gorton is safe,” is a matter of opinion, and not a statement of a fact. It is true that the mere expression of an opinion is no fraud, though it be false. “The question,” says Chief Justice Marshall, in Russell v. Clark’s Executors, 9 Cranch, 69, “how far merchants are responsible for the character they give each other is one of much delicacy, and of great importance to the commercial world. That a fraudulent recommendation (and a recommendation known at the time to be untrue would be deemed fraudulent) would subject the person giving it to damages sustained by the person trusting to it, seems now to be generally admitted.”
The case of Pasley v. Freeman, 3 Term Rep. 51, recognizes and establishes this principle:
“Indeed, if an act, in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of jurisprudence is more defective than has hitherto been supposed.”
We think the allegations of the petition bring it within the rule stated in 5 Am. & Eng. Encyc. of Law, page 328:
“If a party makes representations susceptible of knowledge in such a way as to impress upon the other party the truth of such assertion, but knows that they are false, with the intent that the other party shall rely upon them, in case the other party acts upon these representations, it is fraud.” (Wakeman v. Dalley, 51 N. Y. 27; Hazard v. Irwin, 18 Pick. 95.)
Giving the petition the liberal construction which the law says it shall receive, when challenged after answer by an objection to the evidence, we think it was sufficient.
It is next urged that the court erred in admitting the deposition of T. F. Byrnes, for the reason that the conversations detailed by the witness concerning N. E. Gorton had no connection with H. G. Gorton. The witness stated that he went [127]*127to Norwich in February, 1888, to collect a bill for the firm of C. H. Fargo & Co. against N. E. Gorton. He then went on to detail a conversation had with, the defendant concerning the financial standing of N. E. Gorton, but did not connect N. E. Gorton with H. G. Gorton. They may be one and the same, but it nowhere appears in the deposition that they are the same person. An examination of the deposition satisfies us that the evidence is of such a character as to have influenced the jury. The witness testified that he asked N. E. Gorton to make him a financial statement, which showed him to be solvent; that he asked Robbins if N. E. Gorton was all right, and was assured that he was. We are of the opinion that the objection of the defendant below to the admission of the deposition should have been sustained; that the admission of the evidence was prejudicial to the rights of the defendant.
The last error which we shall notice is the fifth instruction of the court, which reads:
“You are further instructed on this point, that any willful misrepresentation of a material fact, made with the design to deceive another and induce him to enter into a contract or sale he would not otherwise make, will enable the party thus deceived to recover of and from the party making such representations in such sum as the party making such contract or sale has been injured or damaged thereby; and it makes no difference whether the party making such representations knew them to be false or whether he was ignorant of the facts stated, provided the matter stated was material and the party making the statements stated them to be true when he had no apparently good reason for believing them to be true, and when the other party under the circumstances was reasonbly justified in relying on the statements, and did rely on them in making the said contract and sale and was deceived and injured thereby. A party making representations, as of his own knowledge, when in fact he has no knowledge on the subject, stands in the same position as if he had knowledge of the actual facts.”
We think the last sentence in this paragraph of the charge of the court is subject to criticism in this, that it is not applicable in this case. As an abstract legal proposition it may [128]*128be correct, but was not warranted in this case. The petition charged that the defendant knew at the time that he made the representations that H. G. Gorton was unworthy of credit; hence it was unnecessary for the court to instruct the jury as to a want of knowledge.
Other questions have been presented by counsel in their briefs, but we do not think it necessary to consider them, as the case must go back to the district court for a new trial, for the reason indicated.
We recommend a reversal of the judgment of the district court, on' account of the admission of the deposition of T. F. Byrnes, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring.