111 Minn. 6 | Minn. | 1910
The testimony upon behalf of the plaintiff, introduced upon the trial of this action, was to the effect that the defendant having an opportunity of purchasing the right to ten thousand shares of the Parry Sound Consolidated Copper stock at the price of fifteen cents per share, aggregating $1,500, approached the plaintiff February 1, 1907, and said: “ ‘Mr. Gasser, I have a chance to buy a certificate calling for ten thousand shares of the Parry Sound Consolidated Copper stock for a price of $3,000, or thirty cents a share.’ He says:
Very shortly after this transaction the stock of the company was listed upon the market at Duluth at one dollar per share, but subsequently and quite rapidly declined to a much smaller price. On August 8, 1908, which was after some of the decline in price had occurred, the plaintiff tendered the defendant his interest in the stock and demanded a return of the money paid by him. This, the court in its charge to the jury, held to be a rescission of the purchase, and further instructed the jury that if the defendant made the representations claimed by plaintiff, and such representations were false, and the plaintiff was induced to purchase the stock in reliance upon the same, he was entitled to a verdict “for the añiount he paid the defendant, with interest thereon at - six per cent, from the eighth day of August, 1908, when he rescinded the contract.” The jury found for the plaintiff in the sum of $1,500 and interest. An alternative motion for judgment notwithstanding* the verdict or for a new trial of the action'was denied. Defendant appeals from that order.
It is entirely clear from the record that the testimony of the plaintiff tended to establish a joint enterprise for the purchase of the stock, which placed each of the parties in a position of trust toward the other, requiring the exercise of good faith by each. If in fact the defendant, when he proposed this joint enterprise to the plaintiff, knew the stock could be purchased for $1,500, and thereafter secretly
Upon the trial of the action, against the defendant’s objection, plaintiff was permitted to introduce in evidence a memorandum previously made by him reading as follows:
“Have 5,000' shares Parry Sound Consolidated Copper stock in the hands of N. S. Mitchell, it is % of a 10,000 share receipt J. Jl Wall owes the other %, 15,000. Bought from Baldwin, Baldwin & Dancer for the sum of $3,000.00 Oct. 19, 1906. Brot suit to recover on account fraud.”
This memorandum does not appear to have been an entry in any regular account book, nor was the entry shown to have been made with defendant’s knowledge. Its admission was, therefore, prejudicial error, unless, as suggested by the learned trial judge, the facts sought to be imoved by the memorandum were conclusively proved by other competent evidence.
In view of what we have said as to the erroneous basis upon which the case was submitted to the jury, it is not necessary to determine whether the evidence sustains the suggestion of the learned trial court that no prejudice resulted from this error, as for the reasons already given this verdict cannot be permitted to stand. We find no other error in the record.
The order denying a new trial is reversed.