75 Miss. 121 | Miss. | 1897
delivered the opinion of the court.
The bill of complaint in this cause was filed by eleven mem
The case as made by the bill of complaint is that the said defendants, Cook and Wardlaw, promoted a company, and induced complainants to embark therein, for the purchase of certain patents on a device or instrument named the “Columbian Climber” — something like a lifting jack; that said Cook and Wardlaw represented to complainants that the right to sell the instrument — the climber or lifting jack' — in the nine states of New Jersey, Delaware, Virginia, West Virginia, North Carolina, South Carolina, Georgia, Florida, and the District of Columbia could be bought from Melvin Cox, a citizen of Illinois, then in Utica, for $9,000, and no less, and Cox joined them in that declaration, and aided in forming the company, whereas, in point of fact, the said patent conferring the right to sell the said instrument in said territory, cost only $4,500, and the agreement between Cox and the defendants, Cook and Wardlaw, at the time they were forming said company on a basis of $9,000, that Cox was to get $4,500, and no more, for said patents; that said Cook and Wardlaw represented to complainants the price for said patents was $15,000, but that they had induced him, by their efforts, to come down to $9,000; that complainants subscribed to and took stock in said company upon the belief, based upon the representations to that effect by Cook and Wardlaw, that the real price to be paid Cox was
The said defendants — Cook and Wardlaw — filed their answer, denying positively that they were promoters of said company, and denying that they deceived or defrauded complainants, or any of them; and state and set up that, long before the promotion of the Columbian Climber Company was thought of, Cook had agreed and bargained with Cox that he (Cook) should help Cox sell the territorial right to sell said lifting jack, and have for his services fifty per cent, of all sales; that Mississippi and Arkansas had been sold on that basis, and he had the right to sell the said states and the District of Columbia for $9,000, and have half the sum for his services, and that he took Wardlaw in with him, and promised to divide equally with him, and upon that basis they went to work to raise said company; they did not let anyone know that Cox was to get finally only $4,500 and they the balance; but they represented to complainants that Cox was to get the whole $9,000, and did get the whole $9,000, but did, as he had agreed to do, turn over to Cook all over $4,500, as commissions.
The testimony in the case is voluminous for both parties, presenting some contradictory testimony, but no material differences as to main facts. The dispute is mainly as to the attitude of the said defendants, Cook and Wardlaw. Complainants contend that the said defendants, knowing that Cox was to get only $4,500 for the patents, and having represented to complainants that they, the said defendants, had induced said Cox to lower his price from $15,000 to $9,000 in the interest of the buyers,, and that complainants depended upon them to form said company on a true basis, and that complainants would not have subscribed had they known the truth (that Cox was to have but half the amount, and Cook and Wardlaw the other half), they (Cook and Wardlaw) having themselves subscribed on the list
There is an agreement of counsel in the record to the effect that Melvin Cox, the vendor of the patents, would, if present, swear that he would not have taken less than $9,000 for those states and District of Columbia. That, if true, involves the anomalous piece of history that a man would come from Illinois to Mississippi to sell patent' rights, and would absolutely refuse to take any less than $9,000 for certain territory, but would agree to give an agent $4,500 to sell it for $9,000, leaving to himself $4,500; that he would refuse to take $4,500 cash for a piece of property, while he was willing to give fifty per cent, to anyone who would sell it for $9,000, with all the risks intervening as to whether it could be sold or not. What reason could have induced Cox to so act is not disclosed. It could not have been that he wanted it to appear to the people that he had sold out for a larger price. He could have accomplished that by doing what he did do finally — inserted in the deed conveying these rights to the Columbian Climber Company, $30,000 as the consideration, and acknowledge the receipt of that amount. If that were not true, and Cox would have taken $4,500 for the said territory, then the company could have been formed on that basis, without concealment of any facts»; and there could be no other reason for representing to the subscribers that the territory would cost $9,000 than that Cook and Wardlaw might get- out of the other subscribers, without consideration, $4,500 in stock and money over and above the real cost of the territory, as profit to themselves for promoting the company. It depends upon the facts in proof whether the defendants, Cook