46 Minn. 413 | Minn. | 1891
This appeal of the plaintiff from an order refusing a new trial brings here for review the sufficiency of the case made by the plaintiff at the trial to justify a recovery. Upon the plaintiff’s case, the court refused to submit the cause to the jury, and dismissed the action. This action was commenced after the decision in Humphrey v. Merriam, 32 Minn. 197, (20 N. W. Rep. 138,) and is based upon the same facts upon which that action was prosecuted,— that is, for deceit in the sale of mining stock; but in this action the plaintiff seeks to recover, not merely upon the ground that the statements made by the defendant’s agent, Carver, were fraudulent, but also for the reason that they constituted a warranty, so that the defendant would be responsible even though a case of fraud be not made out; and the plaintiff further relies upon a written warranty,
An-examination, of the evidence has led us to the conclusion that . at least as to the former feature of the case — the element of the plaintiff’s reliance upon the representations of Carver — this case is not materially different from that before decided here; and since for this reason, in our opinion, there was no case which ought to have been submitted to the jury, it will not be necessary to decide whether the case would have justified the conclusion that the representations were fraudulently made. As in the former action, the testimony of the plaintiff shows that he was not induced to make the purchase by the representations of Carver, and because he put faith in such representations. He had learned that certain of the stockholders, whose opinion he sought, deemed the property to be very valuable; that one of them had bought stock at 50 per cent, premium, and another to whom he applied would not sell. His previous inquiries and information seem to have been such that, as he distinctly admits in his testimony, he went to Carver to buy some of this stock if he could get it, and so said to Carver at the very commencement of negotiations, although he now says that he does not know that he had then made up
The plaintiff cannot recover upon the representations of Carver as being obligatory on the defendant as oral warranties, for the reason that, even if they were relied upon in the negotiations, they were merged in the written warranty which the plaintiff prepared, as he says, with much care, and had the defendant execute at the time of
But the plaintiff offered evidence to show a breach of the written undertaking that there were no assessments “about to be made” upon the stock. The facts sought to be shown were, in brief, that in January following this sale the stockholders agreed upon the plan of issuing new stock, which was to be taken at a specified price by the existing stockholders, and the proceeds were to be applied in paying debts of the corporation, which plan was carried into effect. We do not think that this could be deemed to be an “assessment” on the outstanding stock, but, even if it were, it would constitute no breach of the engagement that no assessment was “about to be made.” The language of this undertaking requires construction. To construe this as a warranty that no assessment would be made in the near future would make the obligation so uncertain that it is not to be supposed that this was the intention of the parties when they deliberately prepared and executed this written evidence of the undertaking assumed. Upon such a construction it could not be known whether the obligation would be deemed applicable to any assessment which might be made within a month, or six months, or ajear. The language used does not necessarily bear a meaning which would leave so uncertain the undertaking of the defendant. It is rather to be regarded as expressing the more definite guaranty that no assessment had been then resolved upon, or, perhaps, that none was then contemplated. The evidence offered was therefore properly excluded.
Order affirmed.