158 Wis. 285 | Wis. | 1914
This action was to recover damages for deceit in the sale of mining stock of the Tusas Peak Gold and Copper Mining Company. The plaintiff purchased the shares from the defendant Bosenfeld, and the defendant Barge aided Bosenfeld in making the sale. Three misrepresentations were charged. The first two were eliminated by somewhat doubtful rulings of the trial court in favor of the defendants, and the jury found upon the third as follows: (2) The defendant Bosenfeld, for the purpose of inducing the plaintiff to purchase the stock, represented to the plaintiff
Errors are assigned: (1) In denying defendants’ motion for a directed verdict; (2) in the admission and rejection of evidence; (3) in refusing to include in the special verdict questions requested by defendants; (4) in refusing requested instructions.
In support of the first error it is argued that the representations found to have been made were mere expressions of opinion, that there was no competent evidence of the falsity of such representations or of damages resulting therefrom, and that it appears affirmatively that the plaintiff did not, in making the purchase, rely upon these representations. But the sale of stock was made in Wisconsin. The alleged mine is in New Mexico. The defendant Rosenfeld was a lai'ge stockholder and his brother was an officer thereof and participated in the management. The defendant Rosenfeld had recently returned from the mine and the plaintiff never saw it and had no reasonable opportunity for examination. There was no request for a question to be embodied in the verdict asking whether the defendant intended this statement as a mere expression of opinion or a statement of fact, hence we must presume a finding in support of the judgment that the rejjresentation was intended as a statement of fact. Sec. 2858m, Stats.
With reference to the evidence of untruth. In 1909, No
The appellants cite Morgan v. Hodge, 145 Wis. 143, 129 N. W. 1083; Jones v. Kinney, 146 Wis. 130, 131 N. W. 339; Burwash v. Ballou, 230 Ill. 34, 82 N. E. 355, 15 L. R. A. n. s. 409; Tuck v. Downing, 16 Ill. 71; Crocker v. Manley, 164 Ill. 282, 45 N. E. 577, 56 Am. St. Rep. 196, and other cases, to support their contention that the representations found to have been made express mere matters of opinion and are therefore nonactionable; while the respondent cites to the contrary, Warner v. Benjamin, 89 Wis. 290, 62 N. W. 179; Barndt v. Frederick, 78 Wis. 1, 47 N. W. 6; and Brown v. Ocean A. & G. Corp. 153 Wis. 196, 140 N. W. 1112.
Tho representation here found by the jury to have been made may be compared to those held actionable in each of the cases last cited. It is often a close question whether a statement or representation put forward by the seller to induce a purchase is a statement of fact or the mere expression of an opinion, as the preceding cases amply show. It is quite apparent that the misrepresentation found by the jury to have been made in the instant case does not, at least in its
“The mere fact that a statement takes the form of an expression of opinion, however, is not always conclusive. Whenever there is any doubt as to whether it is máde as a mere expression of opinion or as a statement of fact, the question must be determined by the jury or court.” J. H. Clark Co. v. Rice, 127 Wis. 451, 465, 106 N. W. 231.
Here we have the fact found against the appellants by the verdict and the judgment. This finding rests upon evidence.
“It is generally held that where the property involved is situated at a distant place and thus an inspection cannot be made without expense and inconvenience, and the prospective purchaser is ignorant of the facts, he may rely on the vendor’s positive statements regarding the property and may hold him liable if they are false and fraudulent, even though they are representations of the value, quality, and condition of the property.” 20 Cyc. 58 and cases in notes 51 and 52.
We must hold that the representation found to have been made under the circumstances stated was, if false and if relied upon, an actionable misrepresentation. When it was shown that the same dump existed at the same mine in 1909 and that only $14 worth of ore had been shipped in the interim or had ever been shipped from the mine, and that the •defendant Rosenfeld as secretary of the corporation reported the mine as worthless, coupled with proof tending to show that the property was abandoned, evidence was presented from which the jury was authorized to infer that the repre
Where a mine is admitted to be worthless this carries an admission that the dnmp, which is part of the mine, is worthless, and a mill situated upon or built as an adjunct to a worthless mine is usually worthless. At least the jury was authorized to find that the representation made in 1906 that there was a half a million dollars’ worth of ore in this dump was untrue.
As we understand the appellants they contend that even assuming this there was no proof of plaintiff’s damages. The difficulties which the appellants see in assessing damages are largely imaginary. Where the jury is furnished with evidence that the corporate assets are $500,000 less than represented, and a certain number, say one million, shares of stock of $1 each had been issued and were outstanding, and that the plaintiff bought in at forty cents per share or at about $400,000 for the property, and there is further evidence that the property is worthless, it may be found by a very easy computation that the represented value was at least fifty cents per share, or $500,000, and the actual, real, or market value was nothing, or was five cents per share, and the difference this would make on the number of shares bought by him constituted plaintiff’s damages. The defendants could not complain, under such a condition of the evidence, if the jury found damages in favor of the plaintiff of less than fifty cents per share.
Cases are not dismissed nor are judgments reversed merely because of difficulty in fixing accurately the amount of the damages. Treat v. Hiles, 81 Wis. 280, 50 N. W. 896. The fact that sales of shares had been actually made, at or about the time of plaintiff’s purchase, for forty or’fifty cents per
“When the real pecuniary condition of the company is shown, from which it appears that the. stock was worthless, the price at which it sold in New York or elsewhere is entitled to no weight upon the question of its value. The plaintiff .. . was under no obligation ... to mitigate his loss by cheating some ignorant purchaser himself. The question is, what was the stock really worth at the time of the purchase ; not what it would sell for by practicing the deceptive arts resorted to ... to inflate the price.” Hubbell v. Meigs, 50 N. Y. 480.
When we come to the consideration of appellants’ points and arguments with reference to the admission of incompetent evidence, we must weigh this argument by considering all the issues presented by the pleadings, including those properly charged therein, but which the court for lack of support in the evidence or for other reason refused to submit to the jury. It was averred that the defendants falsely represented. the stock as full paid and nonassessable; that the shares were being sold for the purpose of raising money to build a new shaft house; that the corporation was the owner of 260 acres of rich'mineral land and had perfect title to said land and that it owned a large sawmill, and that an assay of the mill-run ore on the dump showed a certain percentage of mineral, and the representations with reference to the quantity and value, etc., of the ore in dump, hereinbefore mentioned. We must also consider all the background of fact properly in evidence, including evidence tending to show that defendants were co-operating in the sale of the shares to the plaintiff. We cannot attack each ruling as if it stood alone, disassociated from the issues made by the pleadings and from the other facts in the case then properly in evidence or thereafter and during the trial properly supplied. The
But the law includes these and goes farther. The relation between members of a corporation and the corporate books and records relating to proper objects of corporate concern and the relation between ordinary citizens and public records are quite similar. In each case an officer having authority in la'w makes a record of transactions permitted or required by law to be recorded. In the former case the member by joining the corporation has brought himself within the corporate regulations. In the latter the general rules of law bring the citizen in the same relation to the public records. Therefore, as between the members of a private corporation, the corporate books relating to the assets, organiza
In an action between shareholders for damages growing out of fraud in the sale of shares this rule of evidence was applied in Hubbell v. Meigs, 50 N. Y. 480. We conclude that the corporate records, consisting of -books and documents treated by the corporation as records or preserved in its books by annexation thereto, relating to corporate affairs and relevant to the issues, were competent evidence against both defendants. Along with this class of evidence there was offered by the plaintiff a letter written by the defendant Eosen-feld to the defendant Barge dated July 7, 1905, more than a year prior to the transaction in question, and some letters written by the defendant Barge to one Wop at relating to the sale of shares in the corporation in question. These are considered competent and relevant, first as admissions of the parties defendant, and second as tending to show that they were both at and prior to the transaction in question engaged in the sale of stock of this corporation.
The ruling of the circuit court excluding a letter of December 26, 1907, from one Shipman to Otto Eosenfeld, found among the papers of the mining company, was proper because it was not made to appear that the corporation had taken any action thereon so as to incorporate it in its books or records. It was the unsworn statement of Mr. Shipman to Otto Eosenfeld. The same is true of the assays of O. E. Davies. Had there been shown some adoption or recognition by the corporation of these documents or the statements therein contained the documents would have been made com
The point is made that the trial court should have submitted to the jury a question inquiring whether the plaintiff at the time of the making of the representations in question had reasonable opportunity to make such investigation as would have resulted in his discovering the truth or falsity thereof. We do not find any evidence in the case sufficient to support an affirmative answer to this question; hence there was no error in refusing to submit it.
It is contended that the court erred in refusing to submit to the jury the following question: “Ought the plaintiff, in the exercise of ordinary care and prudence as an ordinarily intelligent man, to have relied on such representation as true ?” Also the following: “Did the plaintiff show reasonable diligence to ascertain the actual character and truth of the same?” We find no evidence in the record which would justify a negative answer to either of the last two proposed questions. The court ruled upon this request as follows:
“The court is of opinion that such questions as those requested ought not be submitted on the facts and circumstances in this case. The property of the mining company was not present where the plaintiff could examine it. He ■was not obliged to go to New Mexico or to Manistee, Michigan, at great expense for the purpose of investigating the truth of the representations. The court concludes that under the circumstances such questions ought not be submitted.”
We agree with this ruling. There must be some evidence from which the jury could find or infer negligence on the part of the purchaser. The mere fact that he believed a statement not grossly improbable, but relating to a condition -sometimes present in legitimate mining enterprises, would not tend to establish want of ordinary care. A finding of negligence in this case as in other cases must be supported by some evidence, and there is nothing upon which to rest
It is contended that tbe court erred in refusing tbe following requested instruction:
“In relation to question 4 you are instructed that if, by reason of tbe statements of persons other than defendant who were not acting for him in tbe matter, tbe plaintiff became interested in and was led into purchasing tbe stock in question, then you cannot find that be was induced to make such purchase by reason of any statement made by tbe defendant.”
This request was properly refused. It was too broad and sweeping under tbe rule of Darlington v. J. L. Gales L. Co. 151 Wis. 461, 138 N. W. 72, 139 N. W. 447, and cases cited in opinion.
We find no evidence upon which to base tbe requested instruction that if it appeared that tbe representation, if any, made was not an assertion as of defendant’s own knowledge, but rather upon information and belief, tbe defendant really believing such statement, then tbe jury would not be warranted in answering tbe fifth question “Yes.” This fifth question is as follows: “If you answer question No. 2 ‘Yes,’ then did tbe plaintiff rely on said representations in making tbe purchase of tbe stock ?” Tbe court was justified in refusing it because there was no evidence to show that tbe statement purported to have been made upon information and belief.' If defendant asserted positively and as if of bis own knowledge that which be did not know and it was untrue, be would be liable to tbe person relying on bis statement. Nol-is there any evidence that in making it defendant gave the source of his-Information; wherefore tbe requested instruction on this latter point was properly refused.
Much complaint is made of tbe conduct of respondent’s
Considering the issues and the evidence, we are not convinced that the remarks of plaintiff’s counsel affected the verdict to the prejudice of defendants. We have noticed the principal points made. Others have been considered and overruled.
By the Court. — Judgment affirmed.