
    Kimmans v. Chandler & Lockhart.
    1. Action foe false representations. A vendee cannot recover of the vendor for damages by reason of false representations, when it is not alleged or proved that the representations were known by the party making them to be false, or when it appears that the damages sustained are contingent and not actual.
    
      
      Appeal from Pollc District Court.
    
    Tuesday, June 10.
    The facts are stated in the opinion of the court.
    
      M. D. & W. H. McHenry for the appellant.
    ' Casady & Polk for the appellee.
   BALDWIN, C. J.

The defendants sold and assigned to plaintiffs, in consideration of $280, a bond of the school fund commissioner for a deed to a certain tract of the school lands. Defendants, it is claimed, represented that the interest upon said bond had been paid annually, up to the time of said purchase by plaintiff. It appeared that the interest for the year 1858 had not been paid by defendants, although they had so represented, when they assigned the bond to plaintiff This suit is to recover the interest for that year, which plaintiff claims is an incumbrance upon the land, and which he will have to pay before he can obtain the title thereto.

The cause was submitted to the court, which, upon the evidence, rendered a special finding, in substance as follows: That Lockhart agreed with and represented to the plaintiff that the sum of $45, the interest for the year 1858, had been paid at the time of the trade. That plaintiff relied upon that statement, and entered into the contract believing that the interest for 1858 had been paid, and that the plaintiff used reasonable diligence in inquiring about the payment of the interest.

The court further found that said plaintiff had not paid said interest for 1858, to the county, but paid defendants that amount more than was due, according to their agreement, that the parties traded upon the understanding that said interest was paid; that the county still holds the notes against the defendants.

TJpon tbis finding, judgment was rendered for plaintiff. A motion for a new trial, for tbe reason that tbe court erred in rendering judgment upon tbis finding, being overruled, defendants appeal.

Tbe plaintiff does not seek to recover upon a breach of warranty, or for money paid by bim at tbe request or for tbe use of tbe defendants. Tbe claim is that defendants represented that tbe interest was paid, when in fact it was not paid, and that plaintiff will have to pay tbe same before be can procure bis title.

■ It is not charged, nor does tbe court find, or tbe evidence show, that tbe defendants willfully made any false or fraudulent representations at tbe time of tbe sale. Tbe substance of tbe averment is, and all tbe evidence shows, that tbe defendants were mistaken as to tbe fact that tbe interest for 1858 bad been paid.

Tbe plaintiff does not aver, nor does tbe court find, that tbe plaintiff has suffered by means of tbe defendants’ representations. He has not as yet paid tbe money due the school fund, nor is it alleged that tbe defendants are insolvent, or unable to pay tbe same. Their note is yet with tbe proper officer, and tbe defendants are liable to an action thereon at any time.

Tbe plaintiff’s recovery in this case would not prevent tbe school fund from suing and recovering at any time for the same interest. The defendants should not be made twice liable for tbe same debt. With tbis view of tbe case, tbe court erred in its finding upon tbe evidence.

Reversed.  