This is an appeal by the defendant from a judgment upon a note in favor of the Harriman Bank, of which the plaintiff is receiver. He has acknowledged liability for part of the note and paid it; against the balance he set up a counterclaim, based upon his rescission of purchases of eighty shares of the bank’s stock. The facts as develoрed before the judge to whom the case was tried without a jury were as follows: The Harriman Securities Company had bеen organized by Harriman, the bank’s president, to support the value of the bank’s shares. From time to time this company would buy shares and hold them until Harriman could find a sale for them to others, the bank lending it the money for the purchases, and taking thе proceeds of the sales in payment of its advances. Harriman, who dominated the company and the bank, whеedled the defendant, Ehret, into a series of purchases of bank shares in which the bank appeared as the seller. Ehret paid for the first twenty shares in cash; on June twenty-second and twenty-third he bought fifty shares more at about fifteen hundred dоllars a share, for which he gave his note; and on December twenty-third he bought an added thirty at about fourteen hundred dollаrs, for which he also paid by a note. These notes have by renewals been merged into the note in suit. In May, 1931, he had beсome a director of the bank and remained such until after it closed its doors, insolvent, on March 3, 1933. During six months of this time he was a member of the executive committee and he was a member of the examining board throughout the year 1932. The counterclaim is based upon Harriman’s fraud in telling him that the shares were worth what he paid, when in fact their value was only abоut one-fifth as much. On June 4, 1931, he was present at a meeting of the board of directors at which a report of a national bank examiner was presented, which showed that the shares had a book value of $302, as of March twentieth; on Nоvember 27, 1931, the bank’s secretary presented a report of the New York clearing house showing that their value as of October was $293; this report also expressed surprise at the prices at which the stock was selling, in view of its book value and apparent earning power. Ehret did not examine these reports, but relied at the time of each purchase upon what he was told by Harriman whom he regarded as a person of great importance, and with whom he was flattered to be associated. Not only did he fail to examine them, but he took no action to dis-affirm his purchases until after the bank’s collapse on March 3, 1933. Harriman had been forced out of the presidency in the summer of 1932, and in September of that year the new president informed the board of those falsifications of the books, for which Harriman was eventually convicted and imprisoned. On these facts the judge
It is- not necessary for the disposal of this case to rely upon anything but the fact that Ehret was a directоr of the bank; we can assume everything else in his favor, and we do so, arguendo. That is to say, we assume that Harriman’s deсlarations to him charged the bank; that these amounted to actionable deceit which entitled him to dis-affirm his purchases; that, though a shareholder, he could share in the assets on even terms with other creditors and ahead of sharеholders; in short that he could have recovered, had it not been for the fact that he was a director from May, 1931, forward. That fact alone charged him with notice of the truth of those declarations on whose falsity he must rely as the gravamen of his cause of suit. We need take no extreme position as to the duty of the victim of a deceit to make any independent examination of his own. There is indeed high authority for the proposition that when he has as good access to the facts as the utterer, he must avail himself of that opportunity. Slaughter’s Administrator v. Gerson,
Judgment affirmed;