77 W. Va. 62 | W. Va. | 1915
In assumpsit plaintiff sought to recover of defendant the price of two thousand shares of stock of the Noche Buena Sonora Mining Company, owning mining properties in the State of Sonora, Mexico. Besides the general issue, defendant by special plea charged that plaintiff in order to effect the alleged sale of said stock had made the following fraudulent and false representations to him: ‘ ‘ (1.) That the Noche Buena Sonora Mining Company owned valuable mines in the State of Sonora, Mexico, and that said mines had already been developed and were yielding an income which would net a dividend of at least 10% at the time of the sale of this stock; (2) that there was in course of construction at the time of said purported sale a railroad approaching each side of the mines; that said road was completed on one side of the mines to within twenty-five miles of same and on the other side of said "mines to within seventy-five miles of same; (3) that the said company was installing a reduction plant and other modern machinery for the purpose of working and developing said mines; (4) that at the time of and prior to said sale various capitalists and business men in the City of Charleston, West Virginia, whom defendant personally knew to be safe, conservative business men, had invested in stocks in said company and made trips to Mexico and examined the mines owned by the Noche Buena Sonora Mining Company, and said Reiniger reported said mines as being in a good state of development and prosperous condition, and that money invested in the mines would be a safe and profitable investment; (5) that before and at the time of said purported sale the stock of the Noche Buena Sonora Mining Company was of great value and that the stock of said company was scarce on the market and difficult to buy, owing to its great value. ’ ’
The first point of. error in logical sequence made by defendant is that the court, over defendant’s objection, improperly admitted in evidence the depositions of the plaintiff Reiniger, on the ground that, when offered,, “it was not sufficiently shown that the witness was without the State of "West Virginia.” This point is without merit. Not only does the deposition show on its face that plaintiff was a non-resident of the state at the time his deposition was taken, but it was shown by other evidence that he then continued to be a nonresident of the státe. On affidavit that a witness resides out of this state, section 34, chapter 130, serial section 4891, Code 1913, authorizes the taking of his deposition to be used in a case pending in any county of this state. And this statute is sufficiently complied with if the deposition shows on its face, as this one does, that the witness at the time his deposition was taken was a non-resident. Abbott v. L’Hommedieu, 10 W. Va. 677; Hoopes v. Devaughn, 43 W. Va. 447, 27 S. E. 251.
. We understand counsel to argue, however, that although the record shows substantial compliance with said section 34, there is want of proof, as required by section 36 of said chapter, that at the time the deposition was offered the witness was then “out of this State.” We do observe that section 36 does not use the words “resides out of this State”, employed in section 34. The provision of section 36 is: “A deposition in a case at law taken on such notice under the three preceding sections, may be read in such case, if when it is offered, the witness be dead, or out of this State, or one of its judges, or in any public office or service, the duties of which prevent his attending the court, or be unable to attend it from sickness or other infirmity, or be out of the county in which the case is pending. But when the only ground of reading a deposition is that the witness is out of the county,
It is further contended in argument that the evidence of non-residence, shown on the deposition itself, is not sufficient evidence of the continued non-residence of the witness at the-time of the trial, and that oral evidence offered is not sufficient to show such continued non-residence. Without such-oral evidence we think no error would have been committed in admitting the deposition, for the presumption was that the-non-residence of the witness continued until the contrary was shown. 16 Cye. 1053, 1054, and eases cited in note 31; Lawson on Law of Presumptive Evidence, 219, 220; 1 Elliott on Evidence, section 109; Moore v. Ohio Valley Gas Co., 63 W. Va. 455.
The next.point is that' the court erroneously rejected certain material evidence offered by the defendant. We have examined the record on this question, and upon well recognized principles we see no error in the rulings of the court thereon. The only evidence of the defendant rejected which we need notice was a letter bearing date May 14, 1909, purporting to have been written by the plaintiff to Thomas Bentley. This letter bears date some seven months before the date of the contract sued on. It does not appear just when defendant obtained this letter, but it does appear that he obtained it sometime before the trial from a lawyer in Charleston, West Virginia. It is not pretended, nor is it proven, that defendant was influenced one way or the other by this letter in making
We do not see how this letter could have shed any light upon the issues in the case. The only purpose defendant ■could have had in offering this letter was to disclose some fraudulent scheme on the part of Reiniger, respecting the Noche Buena mine, of which the defendant had become a victim. We do not think the letter shows a fraudulent scheme. It does not disclose any purpose on the part of Reiniger to obtain from Bentley any false statements respecting the subjects mentioned. Nor is it claimed or pretended that any
Next it is complained that the court erroneously entertained and required defendant to join in plaintiff’s demurrer to the evidence. , It is argued that as the. burden was upon plaintiff to maintain the affirmative of the issue, he could not assume that he had made out his ease by demurring to the evidence and thereby to withdraw the case from the consideration of the jury. The rule undoubtedly is that a demurrer to the evidence should never come from the party on whom the burden of the proof lies. 1 Robinson’s -Practice, (Old edition), 351; Bennett v. Perkins, 47 W. Va. 425; 6 Ency. Pl. & Prac. 440; Bowman v. Dewing & Sons, 50 W. Va. 445; 38 Cyc. 1541. But the rule is that either party may demur to the evidence introduced by his adversary in support of the affirmative of any issue the burden of which is upon, him. Such is the rule propounded by the authorities just cited. In the case at bar plaintiff fully proved the contract between himself and the defendant, which was in writing and signed by him, as follows: “APPLICATION FOR STOCK. Dec. 21, 1909. I have this day applied to Charles P. Reiniger for 2000 Shares of Stock of The Noche Buena Sonora Mining Company at .50 per share. Par Yalue $1.00. Fully paid and non-assessable. I hereby promise to pay'the amount above set upon delivery of the Certificate of Stock this day purchased in Bankable notes. Name, M. D. Piercy, City, Northfork, State, West Virginia. ’ ’ He furthermore proved delivery to the defendant of the stock certificate called for, non-payment of the price stipulated, and thereby fully sustained the burden of the issues upon his part.
Moreover, while the letters written by plaintiff to defendant subsequently to the latter’s subscription to the stock contain rosy views of the mining property in Mexico, and notably of the Noche Buena mine, and with the purpose of inducing a larger subscription to the stock, there is not a particle of evidence tending in an appreciable degree to show that any of these representations were in fact false; but if they were false.they could not have served to influence defendant’s original subscription. The evidence of defendant shows that after receiving this certificate of stock the last time he held on to it tenaciously, and by his letters led plaintiff to believe he would finally pay for the'stock, so that in the event he should conclude to go to Mexico to locate and take part in the development of these mining properties he might then keep and pay for it and thereby obtain the influence of the plaintiff in securing him a position. The rule of law is that if a party would rescind his contract on the ground of fraud he must exercise that right promptly on discovery of the fraud, else he will be deemed to have waived it. Williams v. Maxwell, 45 W. Va. 306; Watkins v. West Wytheville Land etc. Co., 92 Va. 1; West End Real Estate Co. v. Claiborne, 97 Va. 734; Rouzie v. Daingerfield, 97 Va. 708; Campbell v. Eastern Building & Loan Association, 98 Va. 729.
Finding no error therein we are of opinion to affirm the judgment.
Affirmed.