105 Neb. 766 | Neb. | 1921
Tbe defendant, Waite H. ’Squier, sold to tbe plaintiff, James M. Prime, 1,250 shares of tbe stock of tbe Onabman
The plaintiff did not inspect the mine until May, 1918, his trip having been deferred by mutual consent, and upon his return in June, 1918, from his visit to the mine he tendered back the stock and made formal demand for the return of his- money, which was' refused. This action was afterwards brought to recover the purchase price of the stock under,the terms of the agreement above quoted. The verdict and judgment were for the plaintiff, and the defendant has appealed.
The questions raised upon this appeal depend for their solution largely upon a construction of the contract as 'to the effect upon the plaintiff’s right to rescind the sale, of the words “you are not entirely satisfied,” appearing therein. The trial court, at the plaintiff’s request, gave the folloAving instruction: “You are instructed that, if you believe from a preponderance of the evidence that the plaintiff honestly and in good faith from the evidence received by him on said trip of visitation reached a conclusion that the mine and its management were not as represented to him by defendant and others, then his decision is conclusive, and you will, find for the plaintiff, even though you believe that his decision Avas wrong.” The giving of this instruction is assigned as one of the principal grounds for reversal.
Counsel for the plaintiff and appellee rely upon Thurman v. City of Omaha, 64 Neb. 490, as authority for the foregoing instruction. In that case a bid was made for city bonds, “subject to our attorney’s opinion as to the
As intimated in the discussion from which we have quoted, the nature of the contract and the character of the required opinion is to be considered in determining whether the case falls within that class in which the opinion
It is the representations which differentiate the case at bar from those cases in which the opinion or judgment of the purchaser in a contract of sale has been held conclusive. The contract was not an unqualified reservation to the plaintiff of the right to rescind the sale if, on later inspection, he was not satisfied with the property or with his investment. The right to rescind was reserved, to the plaintiff if, after inspection, he was not satisfied the property was what he had been led to believe it was. If the
An example of those cases which call for personal taste or liking is to be found in McCrimmon v. Murray, 43 Mont. 457, 464, cited by counsel for the plaintiff in support of the rule adopted by the trial court in the instruction under consideration. In that case the plaintiff furnished information to the defendant as to a vein of ore upon the latter’s promise to pay him a certain part of the selling price of the mining claim, “if upon investigation by the defendant, in his judgment, the said information should be satisfactory to him.” It was decided that his judgment was controlling and conclusive, though it was to be exercised honestly and in good faith.
In Paulson v. Weeks, 80 Or. 468, also, a like conclusion was reached, where stock was sold with the reservation of the right to rescind, “if plaintiff should at any time thereafter become dissatisfied with the purchase of said shares of stock.”
And if the contract in the instant case had been that the plaintiff should have his money back if, upon inspection, the mine or his investment was not satisfactory to him, there would be strong ground for holding that he had stipulated for his personal taste or liking and was entitled to the exercise of it. But where the transaction, in its very essence, involved the truth. of the representations upon which he had bought the stock, and he had stipulated for the right to rescind in case he was not satisfied, after
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By the instruction complained of the jury were limited in their inquiry to finding whether or not the conclusion that the mine and its management were not as represented was arrived at by the plaintiff honestly and in good faith, from the evidence received by him on his trip of inspection. If he did so, his decision was conclusive. It Avas not required that the jury find that the facts upon which he founded his conclusion were such as to justify a reasonable man in reaching that conclusion. In vieAV of the fact that from the contract itself it plainly appears that the sale was induced by representations, and that it was the intent that the plaintiff’s right to rescind should depend upon the accuracy thereof, we are convinced that he should not be permitted arbitrarily or without reason to say that he was “satisfied” the representations were false, even though a reasonable mind, in the light of the same evidence, would be convinced to the contrary. The instruction in question Avas therefore erroneous. Fessman v. Barnes, 108 S. W. (Tex. Civ. App.) 170; Fechteler v. Whittemore, 205 Mass. 6; Gladding, McBean & Co. v. Montgomery, 20 Cal. App. 276; Waite v. Shoemaker & Co., 50 Mont. 264; Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387.
In other instructions, given on the court’s own motion, the jury were told that the right to rescind “must be reasonably exercised” by the plaintiff, and that before he could exercise that right the evidence coming to him must “fairly and reasonably” satisfy him that the mining propo
When the talcing of evidence was concluded, the defendant moved for an instructed verdict in his favor, on the ground that the evidence was insufficient to entitle the plaintiff to ..recover, and the court’s refusal to so instruct is assigned as error. We have read the evidence offered on behalf of plaintiff, which consisted of his testimony as to what he saw and what occurred during his visit of inspection to the mine, and the letters that he wrote to the defendant after his return. He testified, also, as to the representations that had been made to him relative to the mining stock and property. We are not prepared to say that, under proper instructions, this evidence would have been insufficient to show prima facie a right of recovery on the plaintiff’s part. We are satisfied that there ought to be a new trial of this case in accordance with the correct rule governing the plaintiff’s right to rescind the sale, and the evidence can then be tested and its sufficiency determined with reference to that rule. These observations apply also to certain alleged errors in the rulings of the trial court in the admission of testimony.
For the reasons stated, we recommend that the judgment of the court below be reversed and the cause remanded.
Per Curiam. For the reasons stated in the foregoing opinion, the judgment of the.court below is reversed and
Reversed.