Redding v. WrightRedding v. Wright
- Reporters:
- , ,
- Before:
- Dickinson
This is a second appeal in this action. The decision on the former appeal — 44 Minn. 355, (46 N. W. Rep. 565) — embraces a sufficient statement of the nature of the action. At the second trial the plaintiff had a verdict- against both defendants, and they *329аppealed from an order refusing a new trial. The decision of this court is asked upon eighty-five (85) assignments of error, many of which do not deserve serious consideration. But there are some assignments which are directed to substantial errors, and, while it may be that some of these did not really prejudice the case of the defendants, we are unablе to say that they may not have had some influence in the minds of the jury, and, upon a consideration of the whole case, we have reluctantly concluded that the defendants are entitled to a retrial. We shall refer specially to a few matters which we think render a new trial necessary.
The account books of the corporation wеre received in evidence, covering a period of some weeks subsequent to the sale by Godwin of his stock. It wаs objected that the transactions subsequent to that time were immaterial. The objection seems to have been well founded. We are unable to say with confidence that such evidence could not have confused or misled thе jury.
The same may be said of so much of Schedule D as related to the condition of the corporation subsequent to the sale.
The declarations of Wright to creditors, as to the embarrassed condition of the corporation, and as to the correctness of schedules showing its condition, were not admissible as proof against Godwin, the latter not being present. Even if there was a conspiracy to defraud the plaintiff, such declarations were not made in furtherance of it.
. The court was hardly justified in ruling that the witness Ide, who showed familiarity with such matters, could not, by an examinatiоn of two hours, have acquired sufficient knowledge of the property and business to enable him to express an oрinion as to its value. The weight to be given to such an opinion was rather for the jury than the court to determine.
The refusаl to comply with the defendants’ sixth request for instruction to the jury was erroneous, and it cannot be said that it was clearly not prejudicial. This was, in brief, that, unless the jury should find that there had been a conspiracy, the representations of onе of the defendants should not be considered as evidence against the other. It is true that the request was not carefully expressed, for it did not in terms refer to representations made by one defend*330ant when the other was not presеnt. But that this is what was meant may be taken as conceded, for the respondent does not suggest that the instruction was erroneous, but only that it was in substance embraced in the general charge to the jury. It does not so appear.
With reference to another trial, we will say that we think that the general charge of the court as to the conditions which would entitle the plaintiff to recover was sufficiently favorable to the defendants. It seems to be contended in their bеhalf that if, by pursuing further investigations, as by examining into the books of the corporation, the plaintiff could have learnеd that the facts were not as represented by the defendants, then he cannot recover; that he had no right to rely upon the representations of the defendants as to matters of which he could acquire knowledge from other sources, readily accessible. We do not so understand the law, and the decisions of this court do not sanction sо broad a statement. See Faribault v. Sater, 13 Minn. 223, (Gil. 210;) Kiefer v. Rogers, 19 Minn. 32, (Gil. 14;) Burr v. Willson, 22 Minn. 206; Porter v. Fletcher, 25 Minn. 493; Olson v. Orton, 28 Minn. 36, (8 N. W. Rep. 878;) Maxfield v. Schwartz, 45 Minn. 150, (47 N. W. Rep. 448.)
It will be observed that the representations to which attention is here directed were concerning matters which the plaintiff might well presume to have been within the personal knowledge of the defendаnts, but which the plaintiff could not learn by cursory inspection, nor without careful investigation into the affairs of the corрoration, or by information from some- person who had acquired knowledge by such-means, and whose information might be relied on as trustworthy. The representations as to the actual profitableness of the business being carried on, and thаt the corporation was not embarrassed by debts, are not- to be classed as mere opinions, nor as the exaggerated estimates of a vendor, concerning which the rule of caveat emptor is applicable. If made for the purpose of being accepted and acted upon by the purchaser, and if so accepted and acted upon, in the belief, induced by such representations, that the facts were as stated, a recovery for the deceit will not be refused on the ground that the purchaser might, by investigation have protected himself against the *331fraud. If the reрresentations were fraudulently made, with the intent to induce the plaintiff to rely upon the fact being as represented, and to act upon the belief thus induced, the wrong-doer who succeeds in such a purpose is not to be shielded from responsibility by the plea that the defrauded party would have discovered the falsity of the representations if hе had pursued such means of information as’ were available to him. See decisions above cited.
Notwithstanding what wаs said when the case was here before, we think, as it seems to have been considered by the court at the trial, thаt from the representations alleged to have been made by the defendants, and the circumstances under which thеy were made, it might be possible to infer that they had agreed or combined to misrepresent the facts. This, however, sеems to have been important only as affecting the admissibility of the representations made when the defendants were not in company.
Order reversed.