92 W. Va. 410 | W. Va. | 1922
The plaintiff brought this suit to recover damages claimed to have been sustained by him because of false and fraudulent representations made to him by the defendants in the purchase of certain stock. He had judgment in the court below, and the defendants bring the ease here by writ of error.
It appears that in the spring of 1917 the defendants had an option on a tract of about one thousand acres of land in“ Lewis county which was supposed to be underlaid with valuable seams of coal. This option provided that they might purchase this land for the sum of one hundred thousand dollars. For the purpose of taking advantage of the option they determined to form a corporation in which stock would be sold to raise the money to pay for the land and carry on operations upon it. With this view they solicited subscriptions to the stock of the corporation to be formed for the purposes aforesaid, and procured such a subscription from the plaintiff, as well as from others. The corporation was subsequently formed in accordance with the design of the defendants, and the plaintiff’s stock issued to him in accordance with his subscription, and he paid therefor the par value thereof, to-wit, the sum of one thousand dollars. He shows that at the time and just prior to making the subscriptions, and as an inducement thereto, defendants represented to him that the option covered one thousand acres of land, and that the' same was underlaid with three seams of coal of the thickness of six, nine and eleven feet respectively; that the said coal was clean; that the eleven-foot seam was opened up upon the property, and that there were eleven feet of clean coal there that could be seen. As to the character of the coal in the other two seams, it does hot appear that any representations were made, except as to the thickness thereof, and it does not appear that the defendants represented that either of these seams were opened upon the property. In addition to making these representations to the plaintiff, the defendants, in 'procuring subscriptions to the capital stock, made the same representations to a number of other parties, and this was permitted to be shown upon the trial of the case. The com
The defendants insist that they are entitled to have this judgment reversed on this writ of error; first, upon the ground that the court admitted improper evidence to go to the jury,. that is, evidence of representations made to other parties similar to those made to the plaintiff; second, upon the ground that it does not appear that the defendants knew that the representations made by them were not true at the time they were made; third, on the ground that the representations proved to have been made amount to no more than expressions off opinion, and as such could not be the basis of a right of recovery in an action for fraud and deceit; fourth, upon the ground that the plaintiff participated in a meeting of tfie stockholders of the corporation whose stock was sold to him by the defendants, at which meeting an order was passed to the effect that “several stockholders have investigated the property in question and authorized the purchase of it”; and lastly, that even though the representations proved to have been made might be construed as representations of fact, and not expressions of opinion, they were not necessarily susceptible of that construction, wherefore the question, what construction should be placed upon them under the circumstances, was for the jury, and the court should have submitted that question to the jury instead of directing a verdict in the plaintiff’s favor. We will discuss these questions in the order above stated.
Was it error for the court to admit in evidence testimony of witnesses to show that representations were made to> them similar to those made to the, plaintiff, which induced his subscription to the stock? It is argued that it does not appear that there was any purpose on the part of the defendants that these representations should be communicated to the plaintiff. In fact, it appears that some of them were made
It is quite true that there is no evidence in this case showing positively that the defendants knew that the representations made to the plaintiff were false at the time they made them. It may be that they did not have- any positive knowledge as to the conditions which existed upon the property at that time. This can make little difference, however, for it is very uniformly held that if it is represented that a certain state of facts is true, and this representation is made for the purpose of inducing another to act theron, or under such circumstances as that the party making it must know that the other is likely to- act thereon, and he does act thereon to his disadvantage, he will be entitled to recover the damages suffered by him, notwithstanding the party making the representation had no actual knowledge of the real conditions at the time. He is under a duty to know that the things he rep
The proposition most insisted upon by the defendants is that the representations testified to by the- plaintiff as being-made to him by the defendants constitute under the circumstances no more than an expression of opinion upon their part as to the conditions that existed upon the land, and it is insisted that if this is so, then there is no right to recover. It is quite true that if the statements relied upon are no more than the expression of the opinion of the party who makes them, they cannot be the basis of a suit to recover damages. In order to form the basis of such a suit they must be representations of existing facts, or rather representations that certain things exist; and it is likewise true that if two interpretations may be put upon the language used when considered in connection with the circumstances, one of which would make such language constitute representations of fact, and the other merely expressions of opinion, it must ordinarily be left to the jury to say which interpretation is the proper one. The parties do not disagree as to this proposition of law. Plaintiff, however, asserts that the representations testified to by him, not being contradicted or in any way questioned, cannot be construed as anything else but representations that a certain state of facts existed at the time, and are not at all susceptible of the construction that the defendants were simply expressing their opinion of those conditions. These representations were that the property was underlaid with three seams of coal of certain thicknesses. There is nothing in connection with this to indicate that the defendants were expressing any opinion upon this question. They affirm simply as matter of fact that there were three seams of coal on the land, and affirmed the exact thickness of each of them. The only fair assumption that could be drawn from this statement was that the defendants had seen these three seams of coal, and had measured the thickness thereof,
There is no more merit in the defendant’s other contention that the plaintiff is estopped because he attended a meeting of the stockholders of the corporation, at which a resolution was passed reciting that a number of the stockholders had made an investigation of the land, and found that it contained these valuable coal deposits. This suit is not for a rescission of the contract. The plaintiff affirms the contract and sues for damages for the false representations. This he may do in a case of this character. He had the election to recover the purchase price, or he could affirm the contract and sue for the damages resulting to him because of such false representations. First Fletcher’s Encyclopaedia of Corporations. § 166.
It follows from what we have said that the judgment complained of will be affirmed. Affirmed.