138 Wis. 381 | Wis. | 1909
1. The trial and record in this case were confused and amplified by a tremendous amount of utterly irrelevant testimony and evidence, much of it so inadmissible that it was an abuse to occupy the court therewith; but, almost incidentally, a small amount of undisputed evidence, mainly from the defendant himself, appears in the record which we deem wholly conclusive of the rights of the parties upon the cause of action presented by the complaint. The cause of action is on a note given for part of the purchase price of a quantity of capital stock. The defense thereto is fraud on the part of the taker of the note in stating to the maker “that there was no promotion stock in the company, that defendant should be elected a director, and that all the other directors had paid for stock which they held.” This is pleaded as a defense and as a reason why defendant should be relieved from his contract to pay for the stock. It is tantamount, of course, to rescission. If it be conceded that the statements were false, were originally relied on, and might constitute actionable fraud, the defendant, when he discovered the falsity, doubtless had a right of election to promptly rescind and demand release from his promise to pay; but he equally had the option to retain that which he had received, thereby affirming the contract with the accompanying right to recover such damage as he had suffered by reason of the fraud. It is established most conclusively by defendant’s own evidence that the falsity of any of these statements which might have constituted fraud became fully known to him very shortly after the purchase of the stock. He was immediately elected a director. He joined in a confederacy to place the stock of himself and the other directors in the hands of an escrow to hold
“In consideration of the release from escrow of certificate No. 129 in Standard Lead & Zinc Smelting & Mining Company for 61,428 shares, I agree-to forthwith deliver to said company a certain contract for the acquisition by me of 11,428 shares of said stock, and to accept said 61,428 and 10,000 shares heretofore delivered, in full satisfaction of said contract, and also to deliver duplicate escrow agreement in my possession. And I further agree that said stock is received by me in full satisfaction of the payment by me of $5,000 heretofore made by me for said stock.”
Erom these facts, which are undisputed, no conclusion is possible but that in September the defendant with full knowledge elected to receive the benefits of his contract instead of
2. Upon the question of the counterclaim there is no dispute that the plaintiff received from the defendant a certificate for 10,000 shares of the latter’s stock. The plaintiff says he received it in payment for his services in obtaining at defendant’s request release of the rest of his stock from deposit in escrow. Defendant denies the making of any such agreement and asserts with equal positiveness that he delivered it to plaintiff to procure retransfer in smaller amounts convenient for sale in the market. Thus, while plaintiff is in some measure corroborated, there was a sufficient conflict of evidence to support a verdict either way upon the terms of the contract accompanying the delivery of the stock to the plaintiff. His refusal to return it to defendant is also supported by some evidence, although involved in some measure of con-' fusion. We therefore are unable to convince ourselves that we could be justified in reviewing the action of the jury upon this subject. We find none of the other assignments of error
The defendant’s affirmance of his contract to take and pay for the 71,428 shares of stock after full knowledge of all of the facts is so conclusively established by his own evidence that we cannot think that a new trial can be in any wise necessary or proper within the meaning of sec. 3071, Stats. (1898). That could not be overcome except by testimony in defiance of defendant’s own statements and admissions. It would but open the door to perjury to submit the controversy to trial again. Hay v. Bamboo, 127 Wis. 1, 105 N. W. 654. We think that justice requires that this controversy be terminated, and that judgment be entered, in accordance with the finding of the jury on defendant’s counterclaim and with the undispitted facts upon the plaintiff’s cause of action.
By the Oourt. — Judgment reversed, and cause remanded with directions to enter judgment in favor of the plaintiff, as of July 8, 1907, for $264.58, together with costs.