86 N.W. 111 | N.D. | 1901
Plaintiff seeks -to recover damages from the defendant for the breach of an alleged contract by the latter to sell and transfer to him 353 shares of the capital stock of the Hillsboro National Bank, at an agreed price of $135 per share. It is alleged in the complaint that said shares were in fact of the value of $165 each. Damages are alleged in the sum $10,590, which is the excess of the alleged actual value of said 353 shares over the price agreed upon in the alleged contract. The defense interposed is twofold: First, that there was in fact no contract to sell; second, that, even if there was plaintiff sustained no damage. At the close of plaintiff’s testimony, counsel for defendant moved the Court for a directed verdict. This motion was granted, and the jury, pursuant to the Court’s direction, returned a verdict for defendant. Judg
The direction of the verdict for defendant is .assigned as error. It is urged “that, upon all the evidence in the case, it should have been submitted to the jury.” The record discloses that the trial court in granting the motion relied: upon two of the several grounds upon which the motion was made. These were: First, failure to prove the existence of a contract to sell; second, no damages shown. In reviewing this assignment, we find it unnecessary to consider the first ground referred to, namely, the question as to the existence of the contract, for the reason that an examination of the evidence has led us to the conclusion that the order of the trial judge in directing the verdict of which complaint is made was entirely proper upon the second ground before referred to, which is that plaintiff failed to prove damages. The existence or nature of the contract need not, therefore, be discussed; for it is conceded that a recovery, in any event, could not be sustained in the absence of proof of damages. Plaintiff’s contention is that he established the damages alleged in his complaint by competent evidence, and that the direction of a verdict for defendant was therefore erroneous. The merit of this appeal turns upon this contention. Is there any competent evidence of damages? The measure of damages recoverable for the breach of a contract such as that we are now considering is provided by § 4985, Rev. Codes, which reads: “The detrimenc caused by the breach of a seller’s agreement to deliver personal property, the price of which has not been fully paid in advance, is deemed to be the excess, if any, of the value of the property to the buyer over the amount which would have been due to the seller under the contract, if it had been fulfilled.” In the case at bar, defendant agree to pay $135 per share for 353 shares, or the total sum of $47,655. The measure of recovery, then, is the excess of value, if any, of said stock above the purchase price, no part of which has been paid. There is no controversy as to the foregoing being the correct measure of damages applicable to this case. That is conceded by counsel for both parties. The real question in the case, and upon which it hinges, is as tq the proper method of proving the value of the stock. How is the-value of the stock to the buyer to be proved? On this counsel disagree. Counsel for defendant urges that the value of the stock in question could only be proved by evidence of the market value of the stock of this bank at the time of the breach of the alleged contract to transfer, or by the market value of shares in some other bank, and in support of this view relies upon § 5010, Rev. Codes, which provides that, “in estimating damages, except as provided by § § 5011 and 5012 [which have no application here], the value of property to a buyer or owner thereof deprived of its possession is deemed to be the price at
What, then, is the rule for ascertaining the value of stock which is shown to have no market value ? Counsel for appellant urge that it is ascertained by proving what they call its “book value,” and it is wholly upon certain evidence as to the so-called book value, to which we will now refer, that the contention is based that damages have been proved. No other evidence was offered as to the value of the stock. Plaintiff called the cashier of the bank — one J. E. Larsham — as a witness on his behalf. This witness identified an original written report made by him as cashier, and verified by his oath, and attested by three directors, to the comptroller of the currency pursuant to § 521 x, Rev. St. U. S., which report purported to show in detail the financial condition of .the bank, as provided by said section, as of date December 2, 1899, which was approxim
W. L. Carter, a witness for plaintiff was asked this question: “Q. Will you please state to the jury how you determine the value of bank stock?” An objection to the question was sustained, and this is assigned as error. It is urged.that it was the jury’s duty to determine the value of the stock, and that it was highly desirable that they should have a rule to govern them. This is true, but the rule called for was one of law, belonging to the province of the court, and not of fact, to emanate from witnesses. The objection was properly sustained.
Neither was it error to sustain the objection to the further questions propounded to this same witness wherein he was asked to ‘give his estimate of the value of the stock in controversy, basing his 'estimate upon the cashier’s report before referred to, and his general knowledge of the reputation of the managers of the bank. As we have seen, this report afforded no basis for determining the actual value of either the assets of the bank or its stock.
It may be asked whether a recovery can.be had at all when the stock has no market value, and, if so, how the value is to be shown. As to this there is no doubt. In 2 Cook, Corp. § 581, the author correctly states the rule as follows: “The fact that the shares of stock have no known market value will not prevent recovery where the actual value is ascertainable in an action to recover damages. The value may be shown by showing the value of the property and business of the corporation.” See case cited in note. In 2 Suth. Dam. 378, a more general rule is stated, as follows: “If the article in question has no market value, its value may be shown by proof of such elements or facts affecting the question as exist. Recourse may be had to the items of the cost, and its utility and use. And opinions of witnesses properly informed on the subject may also be given i'n respect of its value.” It appears that plaintiff pursued none of the methods referred to, but relied entirely upon the report of the cashier, which, as we have seen, afforded no proof of value whatever. The verdict was therefore properly directed.
Other errors are assigned, but inasmuch as plaintiff must fail in any event, by reason of failure to prove damages, such errors become unimportant, and will not, therefore, be further referred to. Judgment affirmed.