(dissenting) : I cannot concur with my brother judges in their judgment in this case.
By this action the defendant in error sought to recover from the plaintiff in error the amount of an indebtedness due to defendant in error from one Kramer for goods sold to him, by reason of an alleged contract between Kramer and plaintiff in error, whereby Kramer sold plaintiff in error a stock of goods, and as a part of the consideration therefor plaintiff in error promised to pay to defendant in error its claim against Kramer.
The answer and the evidence disclose a different state of facts, in my view.
The answer sets forth a prior contract between Kramer and Hargadine-KcKittrick Dry-goods Company under which the dry-goods company had a right to the possession of the stock of goods at any time — not a part of the goods, as stated in the first clause of the syllabus of the majority of this court. After this contract was made, Kramer was.permitted to manage the business for some months, making statements at stated times, as provided by the contract, and receiving a fixed salary. The contract also limited the amount of expense to be incurred, and provided that the dry-goods *209company should furnish a given amount of addition to the stock, and that Kramer should be permitted to buy goods not exceeding a certain amount from other houses, to be promptly reported to and paid for through the dry-goods company.
The business not proving satisfactory, the debt of Kramer rather increasing than being reduced by the proceeds of the sales made by Kramer, the Hargadine-McKittrick Dry-goods Company resumed possession, surrendering their evidences of debt to Kramer, amounting to about $17,000. The value of the property taken possession of was about $8000.
The reports of Kramer prior to and at the time of the surrendering of the possession by him disclosed a small indebtedness for rent, and probably some other items.
Relying upon these statements to represent the true condition of affairs, the Hargadine-McKittrick Dry-goods Company agreed, by a letter to Kramer announcing their intention to discontinue the arrangement and resume possession of the stock, to pay all the indebtedness contracted by Kramer and start him off anew.
His reports, however, as to purchases of goods were false and made with intent to deceive the Hargadine-McKittrick Dry-goods Company. So that, when they made the promise to pay the outstanding debts of Kramer, the claim of Swofford Brothers was unknown to the Hargadine-McKittrick Dry-goods Company— was not in their contemplation in making the promise, having been purposely concealed from them by Kramer.
Upon the trial, the plaintiff company having proved Kramer’s indebtedness to it and the promise in writing of the Hargadine-McKittrick Dry-goods Company to pay Kramer’s indebtedness growing out of the busi*210ness, the defendant offered to prove the fraudulent practices of Kramer, by which it was induced to make the promise, and the trial court, upon the objection of the plaintiff company, held such proof of fraud on Kramer’s part to be inadmissible, unless the defendant would also prove that it had rescinded the transaction in toto by restoring to Kramer the stock of goods and putting Kramer in statu quo.
My judgment is that this was error; that a rescission was not necessary between Kramer and the Hargadine company to enable it to defend against its promise; that the rule of law announced by the supreme court in Clay v. Woodrum, 45 Kan. 116, 25 Pac. 619, applies.
Had Kramer been compelled by the Swofford company to pay the debt, could he have enforced the promise induced by his fraud, in an action for indemnity ? His fraudulent acts inducing the promise would have been a good defense. Swoffords occupy no better position than Kramer would have occupied.
The court refused to instruct the jury to this effect. This was also error.
In my view of the case, the judgment should be reversed and a new trial awarded.