7 Mo. App. 220 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The petition, which contains the allegations necessary to an action on the case for deceit, charges that the defendants, of whom only two, Conlogue and McKeen, have appealed, conspired together to form a “ bubble company,” nominally for the purpose of working lead-lands in Missouri ; issued stock, and by false representations and other means fraudulently induced the plaintiff to purchase worthless shares. The defendants denied these allegations ; but the issues thus raised it is unnecessary to give, as by con
It appears that the defendant Crandall and his associates, who afterwards formed the company iu question, called the Pioneer Mining and Smelting Company, in the spring of 1871 purchased and partly paid for certain mineral lands in Missouri, and these lands were being worked by the parties as a voluntary association. The interests of these parties were not defined, as it was in contemplation to form a corporation. No fraud appears in the inception of the scheme, nor is it shown that the company was what is known as a bubble company. It had valuable propei’ty, and before its organization as a corporation, as well as afterwards, was apparently doing a legitimate business in lead-mining, and selling its products. In June, 1871, the organization took place, the defendants, who had hitherto been interested in the business as individuals, becoming the corporators. The property of the association was put into stock of five thousand shares, at $100 each, which the defendants took in various proportions.
The case of the plaintiff rests, not upon any sufficient evidence that the land was purchased or worked merely with a view to give color of legitimate business to a scheme to defraud, but upon acts and misrepresentations which were designed to mislead and which did materially mislead and deceive the plaintiff in regard to many essential particulars. Though the appellants attempt to argue this point, the findings of the referee are here conclusive, as it cannot be seriously contended that there is no evidence to support them. Crandall was in Missouri, where he lived, and was in charge of the business, while the plaintiff resided in Boston. The representations were in regard to matters of fact peculiarly within Crandall’s knowledge, and were material. Among other things, Crandall, before the first purchase of stock, assured the plaintiff that the associates had paid $20,000 for land and other property, when they had neither paid
It is first urged that the record does not show that the referee’s report was confirmed, or the judgment based on its findings. The judgment of April 8, 1878, is expressed n informal language ; but, without extrinsic reference, it is clear that that judgment is made to follow a confirmation of the report. The entry states “the exceptions to the report of the referee herein having been overruled, the court doth find the issues herein joined in .favor of tbe plaintiff, and assess his damages,” etc, “wherefore it is considered,” etc. By a distinct order, made on January 7, 1878, the court below orders that the exceptions be overruled ; and in the entry of judgment of April 8, 1878, the recital, “and the exceptions to the report of the referee herein having been overruled,” has no meaning or pertinency where it is, except to show that the report is confirmed and judgment rendered accordingly. It is only on the basis of rejecting, or giving no meaning to the words just quoted, that it can be said that the tidal court did not base its judgment on the findings of the referee. To show that the language used is a mere awkwardne’ss of expression on the part of the clerk, it appears that in one of these cases, all of which were argued together, the entry is the same as above, but after the words, “ considered by the court,” follow the words, “that said report be and the same is hereby confirmed,” etc. In all these cases it is clear that findings answering to a special verdict were made, received, and approved; and there was merely “an informality in entering the judgment on making up the record,” which worked no prejudice to the appellants. Wag. Stats. 1036, sect. 19.
The referee finds that all of the representations were
That there was evidence tending to support the findings upon which, by the judgment of the court below, the liability of these appellants was based, appears clearly on examination. Crandall, indeed, swears that he acted on his own behalf and for his own benefit, and that the proceeds of the sale of stock came to his hands, and did not go to the use or benefit of Conlogue or McKeen. But in considering what is evidence tending to prove an issue, the character of that issue must be regarded. The question was as to the relation which these appellants bore to the representations which, upon the issues made, are the foundation of the action. This depends, not on the conclusions of a witness, but upon a great variety of facts. Here, without dwelling-on the fact that these appellants united with Crandall and the others in a common answer in the Whiting case, and placed their justification upon a common ground, the appellants were original associates in an actual business, carrying it on as partners. McKeen, about whom only could doubt exist (the questions as to Conlogue being-plain), was a partner of Minshall, who testifies that he put
From what has been said, it is clear that a jury would have been authorized to infer participation on the part of these appellants in Crandall’s acts. The implication of authority is here more directly made out than the law requires. Promoters of companies are not, indeed, merely as such, each other’s agents, or liable for each other’s acts.
If, with the means of knowledge at hand, an associate thus connected, either through design or carelessness, abstains from knowing and leaves details to his companions,
The doctrine by which the defendants are here made liable is a well-settled doctrine. Persons investing in stock under circumstances like the present have a right to confide in those who hold themselves out as the promoters and managers of a business which they are carrying on, so far as concerns representations made by such promoters, or under their authority, as to material facts of inducement peculiarly within the knowledge of the associates or their agents. Cross v. Sackett, 2 Bosw. 617; Cazeaux v. Mali, 25 Barb. 583; Simons v. Vulcan, etc. Co., supra; Morgan v. Skiddy, 62 N. Y. 319; Miller v. Barber, 66 N. Y. 558; Bradley v. Poole, 98 Mass. 169; New, etc. Co. v. Erlanger, 4 Cent. L. J. 510. The recentEnglish cases are collected and distinguished by Mr. Justice Lindley in the last edition of his work upon Partnership (p. 935). The line which divides cases like the present from Stevens v. Rainwater, 4 Mo. App. 292, and Union Bank v. Hunt (ante, p. 42), has been incidentally pointed out, and is too obvious to be further dwelt upon.
The referee finds that in purchasing the stock the plaintiff relied upon such of the representations, hereinbefore stated, as had been made at the respective dates when the instalments of stock were purchased. This being so, it is not an objection that the plaintiff made inquiries in other directions. It may fairly be inferred that his main and substantial reliance was upon what these defendants said and did; and, as bearing upon this point, the matter of the sham dividend is
As the issues framed were within the pleadings, it is irrelevant now to urge that the precise issues made by the pleadings were not regarded. Parties have a right to narrow the issues upon trial, and this is constantly done. The trial issues must be within the paper issues, but the former often comprise but few of the latter. Here, though the petition contained much that was unnecessary, it contained all that was essential, and there is nothing in the motion in arrest of judgment. The judgment rests on the referee’s findings, not upon the truth of all the allegations of the petition.
The judgment of the court below is affirmed.