220 Pa. 621 | Pa. | 1908
Opinion by
This is an action of trespass for damages claimed to have been suffered by reason of an alleged conspiracy fraudulently and maliciously entered into by defendants to cheat and defraud the public in general and the appellant in particular. In order to sustain a recovery the burden is on appellant to prove by sufficient testimony that such a conspiracy was entered into in the first place, and that as a result of the fraudulent acts done and false statements made for the purpose of furthering the scheme to defraud, he was induced to invest in the preferred stock purchased by him at a price in excess of its real value. Conspiracy is a combination or agreement between two or more persons to do an unlawful thing, or to do a lawful thing in an unlawful manner. A conspiracy to defraud on the part of two or more persons means a common purpose supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each understands that the other has that purpose: United States v. Frisbie, 28 Fed. Repr. 808. In the case at bar seven defendants are charged with conspiracy, but it is conceded there is no evidence against four of them, and certainly as to the other three the evidence is not sufficient to show concerted action or common intent or collusive understanding or unlawful combination to cheat and defraud appellant.
A conspiracy may be proven either by direct and positive testimony showing that a collusive agreement had been entered into to do an unlawful thing, or by acts and circumstances sufficient to warrant an inference that the unlawful
In the present case there is no direct or positive testimony showing or tending to show that an unlawful combination had ever been formed by the defendants, or by two or more of them, to cheat and defraud appellant, and the subsequent acts of some of the defendants proven at the trial, and the rejected offers of testimony relating to the sales of common stock on the stock exchange, in no way connected with the purchase of preferred stock at private sale, or with any dealings between appellant and appellees concerning the purchase and sale of the particular stock upon which this suit is based, fall far short of being sufficient to establish an unlawful combination. Under such circumstances it was the duty of the court to take the responsibility by directing the jury to return a verdict for defendants, which the learned trial judge did, and in so doing he followed the rule of our own cases: Newall v. Jenkins, 26 Pa. 159 ; Gaunce v. Backhouse, 37 Pa. 350 ; Benford v. Sanner, 10 Pa. 9 ; Mead v. Conroe, 113 Pa. 220 ; Collins v. Cronin, 117 Pa. 35 ; Nat. Bank v. Tinker, 158 Pa. 17.
The first eight assignments of error relate to the refusal of the court to allow appellant to show the listing of the common stock of the Daylight Prism Company on the Philadelphia Stock Exchange and the sales of said stock by the defendants and others through brokers. The transaction about which appellant complains was the purchase by him of preferred
The remaining assignments of error, relating to the declaration of dividends and the exclusion of testimony tending to show control of the company by defendants, are without merit under the facts of this case. The excluded testimony, if admitted and believed, was not sufficient to establish a conspiracy to cheat and defraud appellant in the purchase of his preferred stock, and since this is the foundation upon which the right to recover depends, the suit must fall.
Judgment affirmed.