137 Iowa 410 | Iowa | 1908
Pursuant to negotiations between plaintiff and defendant they entered into a written contract of sale or exchange, the material parts of which read as follows:
Article of agreement by and between J. O. Baker, party of the first part, and J. M. Mathew, party of the second part. The party of the first part, in consideration of the promises and agreements hereinafter made by the party of the second part, hereby bargains and sells, transfers and conveys unto the party of the second part all of his stock of shoes and fixtures now located in what is known as the Mina Burgy store building in Marengo, Iowa. All of said stock of shoes which are good salable stock to be invoiced and taken at their actual cost to the party of the first part. The balance of said stock of shoes which are not good salable stock, to be taken at a price to be agreed upon between the parties to this contract, and if said parties cannot agree as to the price that shall be made upon the part of the stock of shoes which are not good salable stock, then said parties agree to allow A. M. Lyon to fix the price of said goods which are not good salable stock and if said parties shall disagree between themselves as to the part of said stock of goods that are good salable goods and those that are not good salable goods, then said matter shall be determined by the said A. M. Lyon, and both of said parties hereby agree to be bound as to both of said last named matters by the decision of the said A. M. Lyon. All fixtures in said store building to be taken at what’they are now actually worth and if said parties to this contract cannot agree upon what said fixtures are worth, then said price shall be fixed by the said A. M. Lyon. The invoice of said stock of goods to be commenced on December 26th and completed as soon thereafter as possible, and, as soon as completed, said stock of goods and fixtures*413 shall be turned over to the same J. M. Mathew. In consideration of the foregoing promises on the part of the said party of the first part, the party of the second part hereby transfers, sells and sets over unto the party of the first part twenty (20) shares of stock in the Marengo Savings Bank, Iowa, ten (10) shares of stock in the Independent Mutual Telephone Company, of Shenandoah, Iowa, and ten (10) shares of stock in the Marengo Telephone Company of Marengo, Iowa, and five (5) shares of stock in the Long Distance Copper Telephone Co. whose headquarters are at Marshalltown, Iowa. Said stock to be accepted by the party of the first part at fifty-five hundred dollars ($5,500.00). The balance of the purchase price of said stock of goods to be paid as follows: One thousand ($1,000.00) dollars cash at the time the invoice of said stock of goods is completed. The balance of said purchase price to be paid by a good bankable note of the party of the second part with interest at 6 per cent. Said note to be executed by the party of the second part at the time the invoice of said stock of goods is completed and said note shall be payable one year from date of the completion of said invoice with interest at 6 per cent.
Plaintiff claims that defendant, who was the vice president and a director of the Marengo Savings Bank, falsely and fraudulently represented that the shares of stock in that bank which plaintiff was to receive in payment or exchange for his shoe stock and fixtures were worth $150 per share, whereas in truth and in fact they were not worth to exceed $50 per share; that he was induced by these representations to make the trade, and as a result thereof was damaged to the amount of $2,000. Defendant denied that he made any representations to plaintiff regarding the worth or value of the shares, admitted that they were worth but $50 per share, pleaded that plaintiff relied upon his own investigations regarding the value of the stock, and averred that in no event was plaintiff damaged because his stock of shoes was not worth to exceed fifty cents on the dollar of the invoice price. On these issues the case was tried to a jury, resulting in a general verdict for plaintiff in the sum of $2,000. The jury also found specially that defendant made the representations as
This was refused, and in lieu thereof the trial court gave the following:
If you find that the defendant made such representations as to the value of said bank stock, you will next proceed to consider and determine whether or not the defendant knew at said time that said representations were false. Upon this question you will consider and weigh all of the evidence introduced by both parties upon the subject as to whether or not the defendant had knowledge of the value of said bank stock at said time. You will consider all of the*417 evidence as to the relations which defendant sustained to the bank, as vice president and director, the condition of the bank, so far as shown, the opportunities of defendant for knowing or ascertaining the condition of said bank and the value of its stocks. You will consider the evidence as to the overdrafts in said bank, and the losses sustained thereby, and whether or not the defendant knew of the same, and, if so, to what extent his knowledge thereof extended. In short, you will carefully consider and weigh all of the evidence which will throw any light upon the question as to whether or not the defendant knew the value of the bank stock at the time of said alleged representations, and if you find that the plaintiff has established by a preponderance of the evidence that the defendant knew that said bank stock was not worth $150 per share (if you find the said representation was made by defendant), then you will proceed to the further consideration of the case, but if you do not so find, your verdict will be for the defendant. In this connection you are informed that plaintiff must establish that defendant had actual knowledge of the value of said bank stock at said time, and had actual knowledge that it was not worth $150 per share at the date of said alleged representation.
Error is assigned upon the denial of the request, and the instruction given is challenged. Reliance is placed upon Boddy v. Henry, 113 Iowa, 462, in support of these assignments of error. The holding in that case seems to be misunderstood. It was there held erroneous for the court to say as a matter of law that an officer of a corporation would be held to know what it was his duty to know. It was not held that the opportunity to know should not be considered in determining whether or not the officer did know. Surely, in determining whether or not one does know a certain fact to be true, it is proper to consider his opportunity for knowing. True, the opportunity to know is not the equivalent of knowledge, and the trial court did not so instruct; but opportunity should unquestionably be considered in determining whether or not there was knowledge in fact. There was no error in either of the respects claimed.
We have now referred to all the errors assigned which are deemed of sufficient importance to justify consideration, and; finding no prejudicial error, the judgment must be, and it is, affirmed.