127 N.Y.S. 664 | N.Y. App. Div. | 1911
This action is for deceit in a prospectus whereby the plaintiff (since deceased) was induced to buy stock of the Alabama and Georgia Iron Company. The transaction was exclusively between Van Sickle, an employee of Grant Brothers, a firm of stockbrokers, and Gilchrist, an
It is hard to suggest any reason why the plaintiff, an investor in many stocks in that year, who was accustomed to invest upon the recommendations of his brokers, would have had impressed upon his memory the exact date of this particular subscription, made through them or their employee, or why the employee would have been impressed in like fashion at the time. And so their testimony after the lapse of six or seven years was naturally indefinite so far as the month is concerned. But when the undisputed testimony of the defendant established beyond question that the prospectus was not printed until November 11, 1899, then, presumably for the first time, it appeared essential to the plaintiff’s case to establish that his subscription to the stock was made subsequent to that day.
The proof to establish this fact rests upon the testimony of the plaintiff, Yan Sickle and Grant, the senior member of Grant Brothers, at the first trial, which was read at this trial, and the testimony of Yan Sickle at this trial. I fail to find any testimony from the plaintiff as to the time of the subscription other than that which I have quoted. Yan Sickle when called upon this trial was, of course, awake to the importance of the time of the subscription relative to November 11, 1899. I am not prepared to say that his recollection upon this trial may not have been more clear than upon the former trial, in that he directed his memory to recall a time now important. But nevertheless he is not a witness who now testifies on a subject to which his attention was not then particularly directed, but a witness who, when that subject is now essential, is positive when he had been uncertain, and is clear when he had been indefinite. Yan Sickle upon this trial testifies that there was no doubt that the
Gilchrist was called by the plaintiff upon the first trial, and his testimony thereat was read upon this trial. He testified that he placed the stock in the hands of Yan Sickle 'in the latter part of August or the first of September, not later than the middle, and this he knew to a certainty. “ Some of the reasons ” for that certainty were found in a letter written to the witness by his principals, and received on September 20, 1899. Gilchrist says that he had sold the stock before that time ; had talked with Yan Sickle before that time; Grant Brothers had then taken the stock, and Yan Sickle had told him that Duryea had bought it. And he is certain he had not given the prospectus to Yan Sickle at that time. The letter is as follows:
“ Rogers, Brown & Go.
“ New York, Sept. 20th, 1899.
“ Robert Gilchrist, Esq.,
. “ Amagansett, L. I.:
“ Dear Sir.— We have called on all subscribers to the Alabama & Georgia Iron Co. for 25% of their subscription, cash payment. Will you please advise the name of your subscriber for $25,000 in order that we may’send him his notice ?
“We understand that of the $50,000 put in your hands to be placed, you have only obtained subscription to date for $25,000. From another source we are offered $14,500 subscription, which we wish to apply against this $25,000 undisposed of on your part, provided it does not conflict with definite arrangements made by you. Please advise at once, and oblige,
“ Yours truly,
“ ROGERS, BROWN & OO.
“Diet. P. I.
“If second 25 M is disposed of on whom shall we call for payment?” •
Gilchrist testifies also that he had reported this transaction at the time to Isham, who had charge of the subscription book. Gilchrist
The witness then explains: “ The first column, William Duryea, care of Grant Brothers, 45 Broadway, Hew York, that means that a subscription was reported to me to William Duryea and is
“ 1899.
Oct. 23. By William Duryea.
Box 240 Ala. Sub. Com...... 140
240 “ “ Pr......'.. 20,000.”
This entry is not made by the sellers of the stock but by the purchaser. It will be remembered that Gilchrist testified that he reported the sale so that it was entered on September 25th by Isliam.on the subscription book. The variance in the figures is explained by testimony of Gilchrist that Duryea finally decided to take but $20,000 and that Grant Brothers were to assume the balance of $5,000. It appears from the testimony of Yan Sickle that the stock was not issued and Grant Brothers did not pay for it for some time after Duryea had subscribed. Yan Sickle thinks it was in the following February. And he says that he does not remember
I am led to the conclusion that the plaintiff did not sustain the burden of proof that the subscription of Duryea was subsequent to the issue of the prospectus. As I have said, the only actors in the transaction were Van Sickle and Gilchrist. There is no substantial dispute between them as to the details save the question whether the subscription was made before or after November 11th. As I have pointed out, the exact time was not of moment when the transaction was had, and its importance was only apparent after the lapse of these years. Gilchrist is supported by documentary evidence which is not assailed or weakened, and which has no ear marks of manufacture. For it is evidence such as would be natural to the transaction itself — the record of the subscription in the subscription book of the seller, the letter of inquiry from the seller as to the details, and the entry in the book of the buyer, or at least of his
I advise that the judgment be reversed and anew trial be granted, costs to abide the event.
Burr, Thomas, Carr and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.