25 Colo. 367 | Colo. | 1898
delivered the opinion of the court.
Of the numerous errors assigned by appellant, it is only necessary to pass upon those included in the following propositions, suggested by its counsel :
First. That it was no part of the business of the bank to make representations regarding the financial condition of the Crowls, or the value of the mining stock, and, therefore, it is not liable for the statements of its officers in this respect; that the evidence does not establish the allegations of the complaint ; that appellee was not justified in relying upon the statements of the bank officials respecting the Crowls and their mining stock; and that the statements attributed to these officials were but mere expressions of opinion or belief, and, therefore, not actionable.
Second. That the court erred in its instructions regarding the measure of damages, and in refusing to permit appellant to introduce evidence touching the value of the stock of merchandise.
1. A corporation must act through its agents, who can only
Belative to the proposition, that the evidence does not establish the facts upon which appellee relies for a recovery, it is not necessary to notice the testimony, except in so far as its sufficiency or materiality bears upon the issues. If sufficient in this respect, it was the province of the jury to determine the facts, and if the testimony supports the issues tendered by the complaint, the verdict and judgment cannot be disturbed upon this ground, so that a disposition of this question depends upon the views expressed on the remaining ones, included in the first proposition advanced by counsel for appellant.
It appears that the representations attributed to the bank officials related to matters regarding which, from the nature of the previous transactions between the Crowls and the bank, they would be presumed to have knowledge. There was nothing in the transaction, nor does appellee appear to have
The general rule is, that a representation cannot form the basis of an action for falsity unless it relates to a matter of' fact, as distinguished from opinion. The difficulty arises in making the distinction. The true rule appears to be, that a. fraudulent misrepresentation cannot itself be the mere expression of an opinion entertained by the party making it, but where such party makes a statement which might otherwise be only an opinion, and does not state it as the mere expression of his opinion, but affirms it as a fact, material to the transaction to which it relates, so that the person to whom it is addressed may reasonably treat it as a fact, and rely and act upon it accordingly, then such statement becomes an affirmation of a fact, within the meaning of the general rule, and may be a fraudulent misrepresentation. 2 Pomeroy’s Equity (2d ed.), § 878. If the representations are of such character that they will bear either the construction that they were expressions of opinion, or statements of fact, the question, which they were, must be decided by the jury. 3 Sutherland on Damages (2d ed.), § 1167; Teague v. Irwin, 127 Mass. 217 ; Sterne v. Shaw, 124 Mass. 59. But in order to justify a finding that they were representations of fact, they must be statements susceptible of knowledge as distinguished from opinion. 3 Sutherland, supra; Sterne v. Shaw, supra; Nounnan v. Sutter Land Co., 81 Cal. 1; Williams v. McFadden, 23 Fla. 147; Parker v. Moulton, 114 Mass. 99.
Precisely what conversation occurred between the bank officials and appellee regarding the Crowls, as detailed by appellee himself, is not altogether clear. He says when he-went to the bank that he wanted to know if the Crowls were-reliable men, i. e., trustworthy. It nowhere appears that he-asked any questions of these officers regarding the solvency
With reference to what was said by appellee and the bank officials, with whom he talked regarding the mining stock, the testimony is conflicting, but taking the version of appellee, it was to the effect that he told this officer that he came there to make inquiries about this stock and the company; that he knew the bank held some of the same security, and that he wanted information that he could rely upon; that the Orowls were strangers to him, and that he did not propose to let his store go unless satisfied regarding the security; that he was told by this officer that it would be all right, and that the number of shares he proposed to take ought to be ample security for the amount which it was intended to secure; that he then thanked him for the information, and said that he could and would rely upon it. The value of the mining stock was a subject upon which an opinion could be expressed, or a statement made as a matter of fact. In the light of all the circumstances surrounding the transaction, it cannot be said, as a matter of law, that the statements of the bank officer regarding the stock, as detailed by appellee, were mere expressions of opinion or belief, and not statements of fact, or vice versa, and this question should have been submitted to the jury, under appropriate instructions, to determine which they were, from all the evidence in the case.
2. Damages are limited to the natural and proximate consequences of the acts complained of, 2 Greenleaf, § 256, and those results are proximate which the party charged with such acts must have contemplated as the probable consequences arising therefrom. Crater v. Binninger, 33 N. J. L. 513. If the facts are established which render the appellant liable, it can only be called upon to respond in such sum as equals the damages which appellee has sustained resulting from the acts charged. By the acts of its officers, if established, as contended by appellee, appellant has obtained his property, the natural and proximate results which they must
The judgment of the district court is reversed, and the cause remanded for a new trial.
Reversed and remanded.