Faris v. Beck, 222 P. 652

Faris v. Beck

222 P. 652

Colo.

1924

Check Treatment

Mr. Justice Denison

delivered the opinion of the court.

Fаris, defendant below, brings error upon a judgment against him on a verdict directed at the close of the evidence, in an action on a promissory note. He moves for a supersedeas.

Four defenses are pleaded: (1) That the note was a renewal of one given as purchase рrice of stock which was worthless and was never delivered and so consideration failed. (2) That both notes were delivered upon the express condition that defendant would not be required to *482рay them except out of dividends of the stock so purchased. (3) That the notes were delivered for the sole purpose of securing for the company the patronage of the defendant in the purchase of goods from it. (4) That to procure such original note said company fаlsely represented: (a) That it was flourishing and prospering and successful and engaged in manufacturing farm machinery in Brighton, and that the city of Brighton had donated a tract of land for their plant, (b) That it had been earning 12 per cent per annum profit, (c) That it was free from debt, (d) That the stock was worth $15 per shаre, but they would ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sell for $12.50. (e) That the company had then on hand enough profits to pay a 12 per сent dividend, and was in such financial condition that the notes would not have to be paid, and that the company would see that the notes were paid out of dividends, (f) That the company was selling to оnly a few responsible parties to create patronage and local interest. (g) That the company was selling all its stock for $15 per share, but was selling to a few local persons for above purposes, (h) That no commissions on sale of stock were to be paid or would be рaid, (i) That the company would not negotiate the note.

The answer further alleged that defendant was induced by said statements to sign the note.

As to the first defense we think the court was right in holding that it was insufficient. It seems that the fact that stock, the sale of which is the consideration for a note, is worthless, and еven known to the seller to be worthless, will not, in the absence of fraud, amount to want of or failure of consideration, if the maker got what he bargained for. Hunting v. Downer, 151 Mass. 275, 23 N. E. 832, and cases there cited; Peck Colo. Co. v. Stratton, 95 Fed. 741; Otis v. Cullum, 92 U. S. 447, 23 L. Ed. 496. Such a case should be distinguished from cases like McCormick Co. v. Brower, 94 Iowa 144, 62 N. W. 700, where the property sold was intended-for a specific purpose. True, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the first defense alleged that the stock was never delivered to the *483defendant, but the defendant’s own evidence on that was such that the court could not havе submitted that question to the jury. It was unqualifiedly shown that he voted on it and treated it as his own whether any certificate was actually issued and delivered to him or not.

As to the second defense, if the defendant wаs a subscriber to the stock, the court was right, we think, in its opinion that the agreement that the stock should bе paid for out of dividends was against' public policy. Even if valid between him and the company, á pоint which we need not decide, it could not be valid between him and the receiver, who represents the creditors of the company. Barnard v. Sweet, 74 Colo. 302, 221 Pac. 1093, decided at the September term. If, however, the stock wаs really treasury stock, that is, stock ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍which had been issued full paid for cash, or for property or services at a reasonable valuation (Barnard v. Sweet, supra), and then donated to the company, it could, we think, be sold by the company on any terms it' saw fit. Yet even then, unless in writing as in Mulford v. Expl. Co., 45 Colo. 81, 100 Pac. 598, there could be no competent evidence of such provision for payment because it changes the terms of the note. A -рrovision that the note shall not be paid except out of a certain source, varies thе note in its paramount and most vital respect. The agreement was oral. As to this defense, therefore, we think the court was right. Wigmore on Evidence, § 2443 et seq.; Mumford v. Tolman, 157 Ill. 258.

As to the third defense we need ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍say no morе than we have said.

The fourth defense, however, is good as pleaded, Whitt v. Orchard Prod. Co., 65 Colo. 585, 178 Pac. 570. The statements (a), (b), (c), and so much of (e) as refers to the profits on hand, and perhaps others, if false, are sufficient to defeat the note, and, since there was evidence to support them, the defendant had a right to a verdict upon them. The direction of the verdiсt by the court was therefore erroneous.

*484But plaintiff says that defendant is estopped to say that he was deceived, that he waived the fraud by failure to rescind on discovery, that he made no оbjection for fraud until he answered, and that his own evidence shows that his testimony of representations made to him is not true. We see no undisputed evidence of estoppel or waiver, because it is not unquestionably shown that the defendant knew the falsity of the statements for an unreasonable time before this suit was begun and fraud set up in his answer; this point, therefore, should have been left to the jury. True, things appear in his evidence which tend to discredit his testimony that these representations were made, yet the question whether they were made was for the jury. It is urged that the court found so and so; but the court in a jury trial cannot make findings which have any force on questions which upon the record belong to the jury.

Both sides have asked us to determine ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the case finally on this motion.

Judgment reversed and cause remanded for a new trial.

Mr. Chief Justice Teller and Mr. Justice Whitford concur.