Findlater v. Dorland, 152 Mich. 301

152 Mich. 301 | Mich. | 1908

Lead Opinion

Ostrander, J.

(after stating the facts). There is no testimony tending to prove that defendants ever expressed more than an opinion, and that an honest one, concerning the future payment of dividends, the future value of shares, or the condition of the property, and it appears that defendant Dorland, both before and after the plaintiff purchased his stock, was himself a consistent purchaser of the stock and became and is now owner of more than 300,000 shares. He at all times claimed and now claims that the company owns a valuable property, which development will prove. Dorland paid 15 cents a share for the most of his stock, more than that for some of it. Neither of the defendants controlled the company or its property. The company did not own and was never represented to be owner of its own capital stock which, in the first instance, was given to the owners of the property in payment for the property. Defendant Luton appears to have had no connection with the company until in August, 1900, before which time plaintiff had subscribed for a portion of his shares. It turns out that plaintiff’s stock was transferred from the, or some of the, original certificates, issued by the company in payment for the mining property, and the money he paid for it went, not into the treasury of the corporation, but to the original certificate holder who paid a commission, to defendant Luton, upon some of the sales made after the first plan to purchase had been abandoned. The original stockholders used some of their shares for promotion purposes and some of them were given to certain Grand Rapids gentlemen, including defendant Dorland. Interested parties received some rosy accounts of the prospects shown by development work at the mine, and such word as was received was handed about among shareholders, • and prospective shareholders. There is no testimony which I have been able to discover, none pointed out in the brief, which tends to prove that either defendant ever manufactured such news or ever retailed it for the purpose of injuring plaintiff or any other person. There is testimony, principally from plaintiff, tending to prove that these defendants represented that some treasury stock was being sold for the purpose of securing money to develop the property; that it was represented to plaintiff that his shares would be from the treasury stock; that plaintiff supposed he was buying treasury stock and would not have bought any other kind of stock. This is what, and is all, that the testimony of the plaintiff himself shows in the way of false representations made or fraud or deceit practiced by defendants to his injury. He obtained information concerning the shares and the property from many others besides these defendants. He testified :

“Q. Now in purchasing this first certificate of stock, upon whose representations did you purchase it ?

“A. I would say that I purchased more on Dorland’s representations than any one else. I banked more on his reputation than any of the rest of the crowd.

“Q. Did the statements that were made to you by C. R. Luton have any influence on your purchase ?

“A. Yes, sir, they did.”

Some treasury stock was sold and some money was used to exploit the property. The declaration in the suit was filed July 16, 1904. That is to say, plaintiff had three and one-half years in which to profit if the venture was successful. He still owns his stock. It is generally true, and was true in this case, that one share of stock in such a company is as valuable as any other share. As plaintiff himself confesses it, we are not required to make the not unreasonable assumption that when a man of his business experience learns that a gold mining proposition is capitalized at $1,250,000, the par value of shares being one dollar and the stock offered for sale at 15 cents a share, he buys, if he buys at all, an interest in a prospect and not in a mine. It is also true, I assume, that one might be induced to purchase shares of stock in such a company if the money he paid went into the treasury of the company issuing the shares, and was used to develop its properties, when he would not buy stock from the shareholders of the company. If, intending to purchase shares of treasury stock, he is given shares represented to be treasury stock, but which are in fact transferred from another shareholder, we are not prepared to say that he may not, acting promptly, rescind the sale, reassign the shares and recover his purchase money from those to whom he paid it. Hamilton v. American Hulled Bean Co., 143 Mich. 277. Suppose, however, he does not rescind, keeps his stock, and sues for damages for the fraud. How, in such a case, can his damages be measured ? Suppose, in such a case, that, after plaintiff’s purchase of stock, money is secured to explore the property. If a mine is developed, or if the property is found to be worthless, plaintiff’s stock is, in either case, worth no more, no less, than other stock. There is in this case no evidence from which the jury could determine the damages of the plaintiff, if any, resulting from the alleged false pretense that the stock he was getting was treasury stock. An instruction to this effect was asked for by counsel for defendants and refused. This was error.

As a new trial should be granted, it is necessary to review another ruling which is complained of. Assuming plaintiff’s theory of his case to be supported by evidence, the rule of damages which was applied is erroneous. Plaintiff relies upon Maxted v. Fowler, 94 Mich. 106. In that case, the stock was represented as having a stated market value. It was held that this was a representation of a fact. The action was assumpsit, upon the warranty, and it was held that the proper rule for damages was “the difference between the market value of the stock as it was represented to be and what it was worth in fact ” at the time it was transferred to the plaintiff. In the case at bar, the stock had no market valué and was not represented as having a market value. It was selling at a nominal price and every one who purchased hoped that it might some day have a market value in excess of the price paid for it. The distinction between the cases is clear. And assuming, as plaintiff asserts, that the shares were represented to have a market value of 15 cents a share, the rule of Maxted v. Fowler was not the rule applied. The jury were not limited to the represented market value. . In actions ex delicto no less than in those ex contractu, involving pecuniary loss, the courts, in the absence of an exact rule, while permitting the facts to be fully laid before the jury for the purpose of arriving at an estimate of the real damages, have denied the right to recover purely speculative damages. In a case similar in its facts to the one before us, the trial judge instructed the jury:

“The measure of recovery is generally the difference between the contract price and the reasonable market value, if the property had been as represented to be, or in case the property or stock is entirely worthless, then its value is what it would have been worth if it had been as represented by the defendant, and as may be shown in the evidence before you.”

Of this charge the Supreme Court of the United States said:

‘£ The measure of damages was not the difference between the contract price and the reasonable market value if the property had been as represented to be, even if the stock had been worth the price paid for it; nor if the stock were worthless, could the plaintiff have recovered the value it would have had if the property had been equal to the representations. What the plaintiff might have gained is not the question, but what he had lost by being deceived into the purchase. The suit was not brought for breach of contract. The gist of the action was that the plaintiff was fraudulently induced by the defendant to purchase stock upon the faith of certain false and fraudulent representations, and so as to the other persons on whose claims the plaintiff sought to recover. If the jury believed from the evidence that the defendant was guilty of the fraudulent and false representations alleged, and that the purchase of stock had been made in reliance thereon, then the defendant was liable to respond in such damages as naturally and proximately resulted from the fraud. He was bound to make good the loss sustained, such as the moneys the plaintiff had paid out and interest, and any other outlay legitimately attributable to defendant’s fraudulent conduct; but this liability did not include the expected fruits of an unrealized speculation. The reasonable market value, if the property had been as represented, afforded, therefore, no proper element of recovery.

“Nor had the contract price the bearing given to it by the court. What the plaintiff paid for the stock was properly put in evidence, not as the basis of the application of the rule in relation to the difference between the contract price and the market or actual value, but as establishing the loss he had sustained in that particular. If the stock had a value in fact, that would necessarily be applied in reduction of the damages. ‘ The damage to be recovered must always be the natural and proximate consequence of the act complained of,’ says Mr. Green-leaf, Vol. 2, § 256; and ‘the test is,’adds Chief Justice Beasley in Crater v. Binninger, 33 N. J. Law, 513, 518, ‘ that those results are proximate which the wrong-doer from his position must have contemplated as the probable consequence of his fraud or breach of contract.’ In that case, the plaintiff had been induced by the deceit of the defendant to enter into an oil speculation, and the defendant was held responsible for the moneys put into the scheme by the plaintiff in the ordinary course of the business, which moneys were lost, less the value of the interest which the plaintiff retained in the property held by those associated in the speculation. And see Horne v. Walton, 117 Ill. 130, 141; Slingerland v. Bennett, 66 N. Y. 611; Schwabacker v. Riddle, 84 Ill. 517; Fitzsimmons v. Chapman, 37 Mich. 139.” Smith v. Bolles, 132 U. S. 125.

In Sigafus v. Porter, 179 U. S. 116, 122, the rule of Smith v. Bolles is restated and affirmed, with a considerable citation of other authority. These cases state the rule applicable to the case at bar.

It is impossible to tell upon what basis the jury estimated the damages of the plaintiff at the sum of $525. They may have been of opinion that the stock is now worth more than plaintiff paid for it. They may have believed that it is now worthless and if it had been as represented would have been worth only $525. This is improbable, but is, within the rule of damages given to them, possible.

The judgment is reversed, with costs of both courts, and a new trial is granted.

Grant, C. J., and Montgomery and Hooker, JJ., concurred.

---

Concurrence Opinion

. Blair, J.

I concur in the view that the damages of plaintiff growing out of the sale to him of private stock instead of treasury stock are wholly speculative and furnish no' basis for a recovery. I further concur in the opinion that no other actionable false representations of fact were proved, and I therefore concur in the result.