207 Wis. 49 | Wis. | 1932
The following opinion was filed December 8, 1931:
This action is against the same defendant and in relation to the sale of stock of the same corporation, viz. Coal River Collieries, as in the case of Graff v. Tinkham, 202 Wis. 141, 231 N. W. 593. It is undisputed that on January 17, 1922, plaintiff bought thirty shares of that stock for $3,000, and for that amount gave defendant a draft, which defendant forwarded to the Coal River Collieries. No dividends were ever paid to plaintiff, and a receiver was appointed for the corporation in 1927. Then plaintiff sued defendant to recover damages, amounting to $3,000, alleged to have been sustained by reason of fraudulent misrepresentations made on January 17, 1922, by defendant to plaintiff to induce him to purchase the stock.
Upon conflicting evidence the jury found the facts to be as follows : To induce plaintiff to purchase the stock, defend- '1 ant represented that the Coal River Collieries was a Brotherhood of Locomotive Engineers enterprise (which was admitted to be untrue) ; and that plaintiff relied on that representation. Defendant also represented that the stock was a safe and sound investment; that he made that representation as a statement of fact; that that representation was false; that plaintiff relied on that representation; and that plaintiff would not, by the exercise of ordinary care, have discovered the falsity of that representation. Defendant also repre
On cross-examination of plaintiff he testified that he had purchased other common stock prior to his purchase of the stock involved in this action. Thereupon, for the purpose of showing plaintiff’s knowledge because of his experiences with other stocks, defendant’s counsel sought to cross-examine as to what stocks plaintiff had purchased; whether he had purchased any on which he had not received any dividends; whether he had followed market quotations of stock. The court sustained plaintiff’s objections to testimony on those subjects, and announced that as the ruling all the way through on defendant’s offer of testimony along that line. Those rulings constituted prejudicial error in this case. To entitle plaintiff to recover at all, he must have relied upon and must have been induced by the false representations to purchase the stock (International Milling Co. v. Priem, 179 Wis. 622, 624, 192 N. W. 68) ; the attending circumstances must have been such that he would not, by the exercise of ordinary care, have discovered the falsity of the repre
Whether plaintiff was warranted in accepting that representation as a statement of fact, whether he relied upon any of the representations or was induced thereby to purchase, and whether he would, in the exercise of ordinary care, have discovered the falsity of the representation, were all issues which were to be determined in the light of plaintiff’s intelligence and experience. As this court said in Miranovitz v. Gee, supra:
“It is not necessary that the representations made be of such a character as to influence the conduct of a person of ordinary intelligence and prudence. ‘There is no such issue in an action for deceit. The sole question is whether the representations in fact deceived the party involved and materially affected his conduct. Effectiveness of deceit is to be tested by its actual influence on the person deceived, not by its probable weight with another. Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074; Barndt v. Frederick, 78 Wis. 1, 47 N. W. 6; Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932.” (Page 256.)
See, also, Becker v. Spalinger, 174 Wis. 443, 183 N. W. 173; International Milling Co. v. Priem, supra.
Manifestly, testimony as to plaintiff’s prior experiences and knowledge in relation to corporate stock was material and relevant, and should not have been excluded in view of its direct bearing upon some of the crucial issues.
Because of those errors, and the direct bearing of the proof, to which they related, upon the most important issues on the trial, the defendant is entitled to a new trial. He has also assigned errors in several other respects, all of which have been reviewed. None of them were prejudicial. Reference will be made only to those yffiich are considered most important in the event of another trial. Five photostatic copies of corporate reports, duly filed by the Coal River Collieries in the office of the state auditor of West Virginia, were received in evidence over defendant’s objections, although they were not authenticated by official certificates in compliance with either secs, 327,08 and 327.18, Wis. Stats,,
Defendant also contends that the evidence does not warrant any assessment of damages except in some nominal amount. It is true that there is no proof of any such definite or undisputable figures that plaintiff’s damages can be ascertained to a mathematical certainty by the application of any accepted formula or theory. However, even if that kind of result is unattainable in cases of this nature, this court has said: “Cases are not dismissed nor are judgments reversed merely because of difficulty in fixing accurately the amount of the damages.” Rogers v. Rosenfeld, 158 Wis. 285, 149 N. W. 33. Such evidence as there is in the case at bar admits of the adoption by the jury of the computation suggested by plaintiff’s counsel, and as the result of which the jury could conclude that at the time of plaintiff’s purchase the value of the stock purchased by him was sixty per cent, of the $3,000 which he paid, and which, in the absence of other proof, was presumably what it would have been worth if the representations complained of had not been false.
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.
A motion for a rehearing was denied, without costs, on February 9, 1932.