108 N.W. 788 | N.D. | 1906
The plaintiff brought this action to recover damages for the breach of an alleged guaranty of the value of 80 shares of stock in the Citizens’ State Bank of Drayton, which were sold to the plaintiff by the defendants in February, 1903. The complaint alleges that the defendants sold the stock at $112.50 per share and as an inducement to the purchase represented “that said stock was then worth the sum of $112.50 per share and promised and agreed that if said stock was not then actually worth the sum of $112.50 per share the defendants would thereafter, upon the plaintiff’s request, pay to him in cash a sum of money equivalent to the differ
The grounds urged for reversal upon this appeal are those presented upon the motion for new trial: i. e., (1) insufficiency of the
The capital stock of the bank was $15,000 which was divided into '150 shares. The defendant Moses was president. He was also connected with .two other banks. The defendant Wylie had been one of its directors from its organization in 1898, and for about a month preceding the sale to the plaintiff had been acting as cashier. On or about the 3d day of February, 1903, the defendants sold and transferred the 80 shares of stock in question, which was the controlling interest, to the plaintiff and the latter took possession. Previous to that time the plaintiff had had no experience in banking, and was ignorant of banking terms and methods, and was not competent to compute the value of bank stock from an examination of -the books. He had known Mr. Wylie for many years, and had confidence in his integrity. His proposition was to buy the stock for what it was worth, and he left it with the defendants to compute its value, and relied upon their
It is not necessary to refer to the testimony of the other witnesses. It sufficiently appears from the testimony of this witness, and the testimony of the parties to the contract, that the sale was made upon the basis of the assets and liabilities of the bank as then disclosed by its books and paper as found by the trial court, and, further, that the plaintiff agreed to accept such assets at par or face value, and that the defendants agreed to make good their representation that the stock when figured upon the basis thus agreed upon was worth $112.50 in case it was found that their computation was erroneous. Was the value of this stock correctly com
The contention that the court was guilty of an irregularity in its proceedings and of an abuse of discretion whereby the defendants were surprised and prejudiced is, in our opinion, without merit. The grounds of this contention were presented to the trial court in the form of an objection at the hearing upon the settlement of the findings. The record shows that when the court had orally announced its findings, including the findings made upon its own motion and previously quoted, counsel for defendant objected to the decision of the case upon the grounds announced by the court, alleging that the complaint was framed upon the theory that defendants had represented that the stock was actually worth $112.50 per share, and not that the defendants’ guaranty was “a guaranty as to what the books showed it to be actually worth on the
Counsel -for defendants subsequently embodied the substance of the foregoing objection in an affidavit, and this, together with the supplementary affidavits of the two defendants were used upon the motion for new trial. We have examined the record with care, are unable to find that the defendants were in any respect prejudiced by the court’s action. True, the complaint alleges that the defendants guaranteed the actual value of the stock, and the court found that they guaranteed its value when estimated in a particular way, but in a manner upon which the parties had agreed, i. e., from the assets and liabilities disclosed by the bank’s books at the time of the sale. The finding is according to the fact as testified to by the parties themselves. It is based upon evidence received without objection.- In fact, the objectionable finding has its strongest support in the testimony of the .witness Wallace elicited upon examination by defendant’s counsel. We think the trial court was correct in its reason for overruling the defendants’ objection, i. e., because the question as to what the contract was, had been fully litigated. If the finding as to value can be said to present a variance from the allegation of “actual value,” in the complaint, it is clearly not a material one. Our Code (section 5293, Rev. Codes 1899) provides that “no variance between the allegations of a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” As illustrating the application of the rule declared in the above section,
Finding no error in the record, the order and judgment will be affirmed.