Shaw v. Gilbert

Sep 24, 1901
Reporters:
, ,
Before:
Dodge

Lead Opinion

The following opinion was filed May 21,1901:

Dodge, J.

The appellant’s brief presents and argues some seventy specific allegations of error. In many cases ■they are merely variant aspects of the same question, and in the effort to avoid undue prolixity we shall attempt to *175•discuss the questions raised, rather than the individual a‘s-■signments.

1. An objection in the nature of a demurrer ore tenus was ovérruled. In this we’find no error; for, while by the complaint wqre demanded elements of damage not recoverable, some cause of action was set forth. It was, at least, alleged that plaintiff and another, since • deceased, parted with valuable -property in ignorant reliance upon false .-statements of the defendant, known by him to be false, and intended to induce plaintiff to so part with her property. This was sufficient to sustain a cause of action. ,

2. The next subject for consideration arises upon some •six or seven assignments of error raising the questions whether a certain class of evidence either tended or sufficed to establish insolvency of the National Electric Company .at the times of the alleged misrepresentations. This evidence consisted of á vast array of transactions and correspondence indicating extreme pecuniary stringency and distress, defaults in payments when due, solicitation of ■extensions, ‘ overdrawn bank account, hypothecation of manufacturing contracts even before the machines had ■approached completion, and a multitude of other circufn-■stanees and instances extending through more than a year .prior to the misrepresentations. No direct evidence was introduced showing the amount of either the assets or the debts of the company. The appellant correctly contends that none of these circumstances nor all of them constitute insolvency, but that, to show falsity of defendant’s statement that the company was solvent, the fact must be made to appear that the assets, at a fair valuation, were not sufficient to satisfy its liabilities other than capital stock. Hamilton v. Menominee Falls Q. Co. 106 Wis. 352.

The respondent’s counsel contends that, by the nature of things, he was cut off from presenting the best evidence, ■namely, the books and schedules of the corporation itself, *176they not being competent against this defendant, and that evidence of its dealings was the next best. This position is hardly tenable. The question, “ What assets and what liabilities had the corporation ? ” was capable of direct’ answer by the testimony of those who knew, such as the officers and employees. They, except defendant himself, were, disinterested, and might have been called to the stand. Incompleteness of their memories from lapse of time might impair the strength of plaintiff’s case, but the delay was her own and should not excuse her from proving her case by legal evidence or render admissible any other. We therefore must confront the question whether evidence of embarrassment, financial distress, and the like can generally be received as tending to prove the ultimate fact of insolvency in the sense above stated, i. e. preponderance of debts over assets fairly valued. Respondent cites numerous cases where such evidence is held’ both admissible and sufficient to prove insolvency, but in the great majority of those cases the term was used in a different sense, well recognizéd as its legal meaning in certain relations, to wit, as merely inability to meet debts as’ they mature in the ordinary course of business. Jeffris v. Fitchburg R. Co. 93 Wis. 250, is an illustration of this class. When that condition is all that need be proved, dishonor of commercial paper and like defaults not only tend to prove insolvency, they actually constitute acts of insolvency if unexplained.

Nevertheless, there is authority as well as reason in support of the view that extreme and unusual acts and conduct, such as are the customary accompaniments and consequence of insolvency in fact and are not usual accompaniments of a contrary condition, may be admitted to consideration as circumstances tending, in connection with other more direct evidence, to establish the fact that assets do not equal or exceed the debts. Abbott, Tr. Ev. (2d ed.), 777; Jordan v. Osgood, 109 Mass. 457; Booth v. Powers, 56 N. Y. 22, 32; *177Mensing v. Atchison (Tex. Civ. App.), 26 S. W. Rep. 509. We conclude in favor of that rule, and accordingly bold that error is not well assigned upon the admission of this class of evidence, nor in permitting the jury to consider it upon the truth of the representation of solvency. There are perhaps items of evidence or testimony among those criticised by appellant which are not relevant upon that issue, but were relevant to the question of the extent of defendant’s knowledge of the truth or falsity of that’ or the other representations charged against him, and of his knowledge of the usual course of business between plaintiff and the company, or by way of cross-examination of witnesses who had testified inconsistently with them. We do not deem it necessary to discuss the admissibility of each item of evidence, but merely pass upon it generically.

In this connection,-it is natural to note appellant’s contention that the evidence was not sufficient to sustain a finding of insolvency, as the term is above defined, merely to say, however, that we deem the question doubtful. . Although the evidence of distress and the resort to extreme shifts and expedients for raising money may have been admissible, the conclusion of insolvency should be drawn therefrom, if at all, only with much hesitancy. Embarrassment, accompanied by extensions and other expedients, is not unusual with manufacturing concerns having abundant assets. Property is not money, and is not available to pay debts or wages, nor always as a basis of credit upon which to borrow. It must not be forgotten that a part of the period involved in the transaction was that preliminary to, and in part inclusive of, the now historical panic of 1893, when men and corporations of abundant wealth were driven to extraordinary shifts to raise trifling sums of money, when credit almost ceased, and rates of interest rose to fabulous height, so that conduct ordinarily inconsistent with solvency became insignificant on that subject. The evidence should, *178in any event, be weighed with care and submitted’ to the jury with cautionary instructions to consider carefully all circumstances and explanations before drawing an inference of actual inadequacy of assets, at fair and ordinary values, to satisfy the debts of the National Company.

Appellant further asserts that the case was tried throughout and submitted to the jury on the assumption, by both attorneys and court, that solvency could not exist unless the assets, reasonably valued, exceeded, all liabilities, inclusive of the par value of outstanding capital stock, — a proposition repudiated by this court in Hamilton v. Menominee Falls Q. Co. 106 Wis. 352, which had not been decided at the time of the trial below,— and that the answer of the jury finding the representation of solvency to be false is predicated upon that view. There are many things in the record not inconsistent with appellant’s assertion. In the examination of witnesses by plaintiff’s attorney, that construction of the word is repeatedly insisted on. Defendant’s attorney had present in court, and referred to for certain purposes, a balance‘sheet of January 1, 1893, showing the assets to exceed debts by something like $180,000, but to be a trifle less than the total liabilities if outstanding stock were included, which, however, he refrained from introducing in evidence in such a way that it could be used upon the question of solvency. The instruction on the subject is consistent with either view. That instruction on the subject of insolvency was as follows: “A person is insolvent when his assets, at a fair market value, are not sufficient to pay his liabilities. You are instructed that the National Electric Manufacturing Company was not insolvent on the 1st day of February, 1893, or on the 20th day of April, 1893, if at such times its assets, at a fair market value, were worth more in the aggregate than its whole .liabilities.” Obviously the jury may have understood the words, “whole liabilities,” to include or exclude capital *179stock. Had an instruction making this pbrase definite been requested and refused, we think it would have been error, but no such request was made. The instruction is not erroneous if the word “ liabilities ” is understood in its .true and legal sense, as defined in Hamilton v. Menominee Falls Q. Co., supra, and it may be that we cannot properly infer that it was either used by the court or understood by the jury in an erroneous sense. We shall not, therefore, predicate reversal upon any such error, but take this occasion to reassert the doctrine on this subject of Hamilton v. Menominee Falls Q. Co., and to express the expectation that upon another trial the court;s attitude will be without ambiguity, and the jury clearly instructed.

3. One William E. Smith, who was auditor of the National Company during the periods involved in this case, testified that shortly after February 1st he had an extended interview and conversation with Mr. Hopper, of the firm of N. Shaw & Co., in which he went fully into the affairs of the company, and exhibited to Mr. Hopper the balance sheet of resources and liabilities of date January 1,1893, whereby it appeared that about $110,000 of the company’s indebtedness was secured by collaterals, which, Smith explained, meant that accounts; bills receivable, and contracts had been pledged to stockholders for advances of that amount of money to the company. It also appeared by such balance sheet that the net losses of th.e company in 1891 and 1892 had been about $15,000, and that to such extent its resources were less than its liabilities, including capital stock. By accompanying inventory, also exhibited, it appeared that in those resources were included such items of dbubtful sale value as patterns, over $7,000; advertising matter, $1,700; patent account, over $10,000; and experiment and exploitation account, over $10,000. Smith also testified that the examination was not cursory, but item by item, and with -explanation by him of the facts. Hopper being dead, there *180was no direct contradiction of this testimony, though plaintiff claimed that it was antagonized by many considerations of improbability. Appellant contends that from this conversation it conclusively appears that N. Shaw & Co. were fully informed of the facts as to the solvency or otherwise of the National Company, as to the fact that its available credit assets were in large degree hypothecated, and as to the true extent to which business was profitable, and that thereafter the plaintiff’s firm could not, in the exercise of reasonable care, as matter of law, rely upon any statements to the contrary which had been made by the defendant. Appellant requested direction of a verdict on this ground; also the submission of a question whether N. Shaw & Co, received the information so testified to; also whether such information was sufficient to set a prudent man on inquiry; and as to what amount of goods were sold between the representations by Gilbert and the conversation with Smith. He also asked instruction that the jury should consider Smith’s testimony in determining on due diligence, and that such information, if given, terminated any right to rely on the defendant’s representations. He excepted to the instructions in fact given, because they permitted the jury to find Shaw & Co. to have been ignorant and to have exercised reasonable diligence, although Smith’s undisputed testimony showed the contrary; and he also moved for a new trial because this testimony negatived, without dispute, any possibility of reasonable diligence on the part of plaintiff’s firm.

Without assuming to decide, adversely to the view of the trial court, that Smith’s testimony was so without conflict, either of testimony or of probabilities, that the court ought to have proceeded upon the assumption that the interview testified to by him took place and that all the information described by him was in fact disclosed, it appears to us entirely clear that not enough significance was given to that testimony in the submission of the case. If Noah Shaw *181& Co. did receive this information within a few days after ■Gilbert‘s representations to them, they certainly had no further right to rely blindly on statements in conflict therewith. That they did continue to rely without further investigations is distinctly testified to by Mr. Shaw. The court went no further than to submit to the jury the question whether the plaintiff’s firm exercised due care and diligence in ascertaining the truth of Gilbert‘s statements and’ in extending credit, and to instruct them, in substance, that by reasonable care and diligence is meant the care which ordinarily prudent men would exercise under the same circumstances; that, if they knew the representations were false, they had no right to rely upon them nor extend credit; and if they had notice of actual facts, concerning which representations were made, or had knowledge of facts which, by use of reasonable diligence, would have led to the discovery of the truth of the representations, and failed to use such diligence, they must answer, “No:” and that they were to take into consideration all the facts and circumstances proven bearing upon the same, and all the knowledge, from whatever source it came, that was brought home, either to Noah Shaw of George W. Hopper, bearing upon the .truth or falsity of any of the representations. The question of fact whether Smith gave the information, as he testifies, should have been specifically submitted to the jury in some way, either by direct question or by instruction that, if he did, the plaintiff could not be held to have exercised reasonable care in continuing to rely on Gilbert‘s representations in conflict therewith. No equivalent for such submission or instruction can be found in the charge. Under the rule of Warner v. Benjamin, 89 Wis. 290, 295, error was thus committed clearly prejudicial to defendant, from which reversal must result.

4. We are in some doubt whether the most fundamental question of all, namely, the making of any representations *182whatever, was not so confused by the manner of its submission that the jury did not squarely pass upon it. The dispute in the evidence was not whether certain things were said in the two alleged conversations between Noah Shaw and Gilbert, but whether any conversations were in fact had. Noah Shaw testified that they were; Gilbert testified, with equal positiveness, that they were not, and was supported inferentially by men in the company’s office, who denied ever seeing Shaw there at or near the times specified by him. As to what was said if the interviews occurred, Shaw’s testimony stood alone and uncontradicted, except by what appellant urges as inherent probability. The trial court submitted the issue by the first and twenty-sixth questions: “ Did the defendant at the time of the first [and second] conversation represent to N. Shaw & Co. that,” etc.? True, the court instructed the jury: “We have spoken of certain conversations as the first and second conversations. ¥e have done that for the sake of brevity. When we say ‘ first conversation,’— when I instruct you or read from the questions in regard to the first conversation,— I refer to that conversation, if any was held, which plaintiff [sic] testified that he had with the defendant about the first of February, 1893.” This is confusing. It falls far short of fastening the minds of the jury upon the square issue of fact to be decided, and hardly suffices to overcome the vice of the question itself, which relates to the matter of a conversation, and not to its occurrence. The minds of the jury.are not turned from consideration of what was said as the important thing to consideration of whether the interview took place. We cannot, perhaps, say either that the question was strictly erroneous, or that the jury have not, by answering it, found as a fact that a conversation was had, as well as that certain things were there said. Our conclusion upon the whole case renders it not necessary to decide whether reversible error was thus committed, and we may pass the subject with the *183foregoing expression of doubt, and with the expectation that upon another trial the real issue will be clearly submitted.

In this connection it, is • perhaps most natural to say that we cannot concur in the view advanced by appellant, under other assignments of error, that the evidence was not sufficient to support a finding that the representations complained of were made. Noah Shaw testified thereto positively, and Gilbert, with equal positiveness, made denial. This, we think, makes a jury issue, notwithstanding certain circumstances which, appellant argues, render Shaw’s testimony incredible. Such evidence consists of the testimony of employees of the National Company that they never saw him enter the office, and of his own testimony that he never at any other time had any transactions on behalf of Shaw & Co. with the National Company or with Gilbert. This evidence, however, goes no further than to create a conflict and present a question, the jury’s answer to which, either way, has support.

5. Another assignment of error is predicated upon a contention thaflccrtain questions were duplex or compound. Of these, question 21 is typical. That question, referring to questions 1, 2, 3, and 4, whereby it was found that three representations were made, all of which were false, inquired, “ Did N. Shaw & Co. rely upon such representations so found by you to have been falsely made, and were they induced thereby to extend additional credit to the National Electric Manufacturing Company ? ” That question was answered in the affirmative. No -prejudicial duplicity exists in this question, in view of the answer thereto. Appellant’s argument seems to be based upon the understanding that the inclusion in a question of the special verdict of several inquiries, capable of answer in different ways, is necessarily erroneous and prejudicial. This is not true. Such question is materially erroneous only when, measured by its answer, it leaves the decision of the jury ambiguous and uncertain. *184If a jury be asked whether three’ separate propositions be true, all joined by the conjunctive, and answer in the affirmative, there is no uncertainty or ambiguity as to any one of them. By declaring that all are true, they have declared that each is. The same question, answered in the negative, might constitute reversible error, if more than one proposition submitted were material; for then the jury, by answering in the negative to the inquiry whether all are true, have not necessarily declared their decision as to any one of them. Such was the vice fatal in Dugal v. Chippewa Falls, 101 Wis. 533. That vice, if it existed in the question now under consideration, was cured by the affirmative answer, unambiguously declaring that the plaintiff did rely upon the representations found to be false, and also did extend credit by reason thereof.

Still, another consideration disposes of this assignment of error, namely, that the answer to this question is equally sufficient to support a judgment whether the reliance were placed on one or on all of the false misrepresentations, since, as hereafter pointed out, they are each‘and all material. Such was the ground of overruling a similar assignment in Patry v. C., St. P., M. & O. P. Co. 82 Wis. 408, where the question was whether either conductor or brakeman of a defendant railway company invited plaintiff upon the train. It was wholly unnecessary that the jury should define which, for the invitation by either was sufficient to establish the liability.

6. Another class of the assignments of error are predicated on the contention that the three representations included in the special verdict were not the only ones made, but that in the first conversation it was represented that the plaintiff would be safe in filling future orders, and in the second conversation that the stock of the company would be increased to $500,000, and that it would thereafter pay cash for everything. The argument is that these rep*185resentations were not actionable, and that if plaintiff relied thereon her action cannot be maintained. The court refused to inquire whether plaintiff did rely on these statements or would have sold without them. Noah Shaw testified that he relied on all the representations made to him. The jury have found, in reply to another question, that the plaintiff’s firm did rely on the representations specified in the first question, and found to be false. This is, of course, sufficient. A false statement relied on, and without which the transaction would not have been had, constitutes legal deceit, although it may not have been the sole and only motive or consideration moving the defrauded party thereto. Doubtless, if it had appeared that plaintiff relied solely on the assertion of the defendant’s opinion that she would be entirely safe in filling future orders, she could not maintain a recovery although other false statements had been made, upon which she did not rely; but the jury have negatived any such contention. Thesubmission of the question whether she also relied on other unactionable statements or assertions would have been wholly immaterial. 14 Am. & Eng. Ency. of Law (2d ed.), 61, note 5; Safford v. Grout, 120 Mass. 20; McAleer v. Horsey, 35 Md. 439, 453; James v. Hodsden, 47 Vt. 127, 137; Warner v. Benjamin, 89 Wis. 290.

7. Appellant requested submission of question whether the representations assigned were made for the purpose of assuring plaintiff that the then existing indebtedness due from the National Company would be paid, and the court refused. The question in fact submitted was whether the’ representations were made by the defendant for the purpose of inducing N. Shaw & Co. to extend credit to the National Company, and the jury were instructed, in effect, that the words “ extend credit ” meant to furnish additional materials and perform additional work. This they answered in the affirmative, after being instructed that they could not so answer if defendant’s only purpose was to as*186sure plaintiff that tbe then existing indebtedness would be paid. In this respect we are satisfied no error was committed. It would be immaterial that defendant might have intended to assure plaintiff of the safety of her existing indebtedness, if he also intended to induce further extension of credit. That he did intend the latter, and that the former was not his sole purpose, has been distinctly found by the jury, under apt and proper instructions.

8. Another of the assignments of error, closely connected with the foregoing, is the refusal to instruct the jury that there was no evidence upon which they could find that the representations were made for the purpose of inducing the subsequent furnishing of materials or work for the National Company. The evidence of the plaintiff with reference to that conversation, as well as the evidence of. the situation generally, shows that both parties had in expectation that plaintiff was to continue furnishing castings for the National Company, and one of the assertions claimed to have been made by the defendant was that plaintiff might “ fill all orders of the National Electric Company, and extend notes as required by them, with perfect safety.” This certainly was sufficient to carry to the jury the question of defendant’s intent to influence plaintiff’s conduct in respect to future transactions.

9. Another series of assignments of error are based upon the contention, first, that the jury nowhere found that any of the misrepresentations were material, although they did find that they were intended to be relied on and were relied on. It is also insisted that, if the representation of solvency were in fact time, the representations that the business was profitable, and that the assets were unincumbered, were, as matter of law, immaterial, and the jury should have been so instructed and directed to so find. We do not consider any of these assignments of error well taken; for it seems.apparent that all of the three principal representations — solv*187ency, large amount and unincumbered condition of assets, and profitable condition of business — were material as matter of law. Solvency is substantially conceded by appellant’s counsel to be so material, but solvency, as already defined, is not inconsistent with failure to pay indebtedness at the time it is due, nor even with inability to enforce payment at any time. Though solvent, in the sense that at the time under consideration a debtor’s assets, at fair value, exceed the amount of his liabilities, it is by no means impossible that there may be such pecuniary stringency as to make payment inconvenient, if not well-nigh impossible, at the time the debt falls due; or that the property may have been pledged as security, so that in the enforcement of the debts for which it is pledged the margin of excess may be wasted and destroyed, certainly so that it cannot be made available in money to meet other debts. In considering the safety of extending credit to one in active manufacturing or mercantile business, few circumstances are of equal cogency with that of the existence of large amounts of available assets, such as can be readily reduced .to money, made the basis on which to borrow, or may even be acceptable to the creditor in payment. Most notable among these are good accounts and bills receivable. If these be in hand in large amount, a prospective dealer may well take the chances of securing payment of his claim as against other creditors, by reason of his willingness to accept certain of those assets in payment, or by reason of his belief that he can readily find an investor willing -to loan enough money upon such security to enable his debtor to satisfy him.

Hardly less material to the quality of a contemplated line of credit is the fact that the debtor’s business is prosperous. Solvency in an unprofitable business may quickly become insolvency by the very necessity of realizing upon assets to meet pressing debts. But if the business is .profitable the probabilities of such a contingency are greatly lessened. A *188careful credit man may justly consider that the solvency of his debtor is then increasing instead of likely to decrease. While materiality of the facts represented is essential to maintenance of an action of deceit (McAleer v. Horsey, 35 Md. 439), yet such materiality may be so plain that the court should decide it as matter of law, as we have recently declared in McGowan v. Supreme Court I. O. F. 107 Wis. 462.

10. The appellant requested the court to submit to the jury, both by a separate question and by instruction, the proposition that-a slight want of ordinary care was inconsistent with the reasonable diligence necessary to a recovery in reliance upon the statements claimed to have been made by the defendant. It is unnecessary at this time to review the’ considerations which have led this court to hold that, since any want of ordinary care constitutes negligence, a party is entitled to have submitted to the jury, either by question or by express instruction, whether there has been even a slight want of ordinary care. The rule requiring such submission may be thought to smack of overrefinement, but it has been adopted and adhered to so fully that its propriety is now beyond discussion. Jung v. Stevens Point, 74 Wis. 547. The plaintiff in this case owed the duty of all the care and diligence which would ordinarily be exercised by an ordinarily diligent and prudent person under like circumstances. If at any stage of the transactions she was guilty of any omission of such • diligence or care, however slight, she would not be entitled to recover damages thereby caused. The rule, having been requested so as to fully call the court’s attention to it, should have been either given or submitted to the jury, and refusal thereof was error.

11. Appellant requested instruction: “(14) You are instructed that you cannot find that the defendant falsely or fraudulently made representations to N. Shaw & Go. from conjecture or mere inference. Eraud must be clearly proven, and the burden of proof is on the plaintiff to establish that *189fact.” “We think this instruction, or an equivalent, should have been given, and that its refusal is distinct and reversible error. The rule is general and elementary that while fraud, and especially the intent, may be inferred from acts, conduct, and circumstances, yet, as the assertion of fraud involves a charge of moral turpitude, such inference is not to be lightly drawn from doubtful and ambiguous circumstances, nor because of mere suspicion or conjecture. The field of inference is a dangerous one, because the most innocent circumstances can, by juxtaposition with others as presented by counsel, often be colored with suspicion, which, aided by sympathy for the suffering victim of alleged deceit, may often hurry the jury across the line between mere conjecture and legitimate inference, unless restrained by cautionary instructions to sane and careful watchfulness over their mental steps. Juries should always be instructed that they cannot draw an inference of fraud except upon dear and satisfactory:evidence legitimately pointing thereto. 1 Jones, Ev. § 190.

12. An error is assigned to remarks of counsel and the court thereon, which, while not very definite, seem to include an erroneous idea to which it may be well to call attention. Plaintiff’s counsel was commenting upon a voluminous array of letters written by the defendant, claimed by the plaintiff’s attorney to constitute evidence, by way of admissions, at once of the insolvency of the company and of Mr. Gilbert‘s knowledge of the fact. He thereupon made the assertion that, if there was any letter there that was favorable to Mr. Gilbert, defendant would have put it in. This was objected to, and the court asked to rule that it was improper and that defendant, could not, as matter of law, put in a letter that was written by him to somebody else; to which the court ruled: “I am inclined to think that as the matter stands before the court, that other letters in his favor would have been admissible.” Ho rule of law *190is more elementary than that a party cannot offer in evidence his own self-serving declarations or statements. This ruling would certainly tend to convey to the jury the contrary idea, namely, that if Mr. Gilbert had ever written a letter, either denying the company’s insolvency or denying his own knowledge thereof, it would have “been received in evidence; hence that he never had written such a letter. If this is its fair meaning, it was erroneous and prejudicial.

13. Appellant assigns three separate errors, the substance of which is a complaint that the court allowed the jury to find, and adopt as the measure of plaintiff’s damage, the price of the goods sold to the company subsequent to the two representations, in which price there was a margin of profit to’ the plaintiff of from five to ten per cent. In this there was no error. Plaintiff was entitled to recover as damages the value of the goods parted with on the faith of the misrepresentations, and the evidence is undisputed that the price at which they were sold was the fair value. , The fact that in this value was an ordinary measure of trade profit does not interfere with the application of the above rule, any more than as if one purchased by fraud from an ordinary retail dealer the goods upon his shelves at the price at which they were customarily sold in the community. John V. Farwell Co. v. Wolf, 96 Wis. 10, 20.

14. Two of the most strenuously argued assignments of error are predicated upon refusal of the court either to decide in defendant’s favor or to submit to the jury the question of the value, prior to the company’s failure, of the accounts owing by the Rational Company to plaintiff’s firm for goods sold after February 1, 1893, of of the three notes received for such accounts at the end of February, March, or April. We are unable to perceive any error in refusing the specific requests made. The value neither of the open accounts at the end of each month, nor of the notes given in settlement thereof, was of any materiality, so long as *191plaintiff had no opportunity to realize thereon in accordance with the course of business contemplated by plaintiff and defendant at the time of the misrepresentations. , In the purchase of some commodity, either to be consumed or to be resold, it may well be that the safest measure of damage to the defrauded purchaser is the difference between the actual money value of the commodity at the time of its receipt and its value if as represented. Such rule has been ‘applied in a multitude of cases relating to a variety of commodities, including stocks and perhaps bonds, where of a merchantable character, so that a sale, instead of •collection, would be the ordinary process of realizing on •them. In case of commodities presumably purchased for resale, the subsequent rise or fall is at the risk of the ■purchaser, and does not enter into consideration of his ■damages, except under peculiar circumstances. A few of the many illustrations of the foregoing rules of damage may he cited: Birdsey v. Butterfield, 34 Wis. 52; Warner v. Benjamin, 89 Wis. 290, 295; Krause v. Busacker, 105 Wis. 350, 355; Sutherland, Damages (2d ed.), § 1171; Vail v. Reynolds, 118 N. Y. 297; Smith v. Bolles, 132 U. S. 125. Obviously, however, where the result of deceit is to foist •upon a party a claim for a sum of money, the same -principles must be applied in a different manner in order to •correctly measure the damage. If he ultimately receives the full amount of his claim, he suffers no damage and can •recover none, although that results from subsequent appreciation of security or subsequently attained solvency of •the debtor. Foster v. Taggart, 54 Wis. 391; Potter v. Necedah L. Co. 105 Wis. 25. The worthlessness of the claim .at the time of its acquisition would not fix the measure of a defendant’s liability, and the converse ought not to, unless •ultimate failure of collection results from negligence or from conduct not fairly within the contemplation of the parties or the ordinary and natural course of events. Baker *192v. Ashe, 80 Tex. 356; James v. Hodsden, 47 Vt. 128, 138; Coffing v. Dodge, 167 Mass. 231; Smith v. Duffy, 57 N. J. Law, 679. The situation disclosed at the time of the misrepresentations wholly negatived the idea that plaintiff was to do otherwise than seek collection according to their established custom of dealing, whether of the account at the end of each month, or of any note received in extension thereof, such extension having been customary. It was not contemplated that she was to expose upon the market for sale, at such price as she could obtain, either such accounts or notes. Such conduct would very quickly transpose embarrassment of the company into insolvency and failure. The value of accounts or notes is of no materiality prior to the time when, according to the contemplation of the parties, the plaintiff would be expected to demand and insist upon payment. This time did not occur at the end of each month; for settlement and extension by note of the monthly account was the custom. No evidence exists whether any of the notes taken were for longer time than the previous course of business warranted, and no proof is made of any unusual conduct in the way of extending or renewing such notes, or omission of any efforts to collect when due which defendant had a right to expect. Without such showing no error was committed in refusing to submit the question demanded.

15. An error seems to us well assigned in connection with the recognition a‘s an asset of the liability of certain stockholders for the face of some $48,000 of so-called “ dividend stock ” issued without anything paid therefor. It was shown with substantial conclusiveness that the other assets had at least sufficed to discharge the expenses of settling the estate of the company; that some $42,000 of this stock was issued to, and held by, responsible holders; and that plaintiff’s claim constituted about one fifteenth of the total debts,.so that her share of the $42,000 would approximate $2,600. *193Plaintiff’s attorney, in argument, substantially consented that the jury estimate her probable recovery out of this asset at ten per cent, of her claim. The court instructed the jury, in substance, that this liability - was established and plaintiff’s right to share therein conceded. Notwithstanding all this, the jury found that the value of plaintiff’s account against the company was nil. It is difficult to discover how such finding could stand in the light of the evidence or of the instruction. ■ We think the court should have either set it aside or required remission of a sum commensurate to plaintiff’s share of this asset. ’

Another error associated with that just discussed consisted in refusal of an instruction that the amount of this asset was not merely the face of the stock issued without consideration, but also interest thereon from date of its’ issue. If the stockholders were liable at all, they were liable as well for interest from the time when they ought to have paid the principal. Laycock v. Parker, 103 Wis. 161, 187. That time ivas, of course, when they received the unlawfully issued stock. Jenkins v. Bradley, 104 Wis. 540, 563. The interest from that time would have been so considerable a sum that the share apportionable to plaintiff’s claim against the company would have approximated a thousand dollars. Instruction should have been given substantially as requested.

16. Specific error is assigned upon the refusal of the court to restrict plaintiff’s recovery to five sixths of the damage caused to herself and Hopper, her partner, jointly by the alleged deceit. Upon the exact question raised, counsel cite no direct authority to guide us. Plaintiff claims re-coveiy of the whole as survivor of two joint sufferers by a tort,— a right well recognized, and of which we should not doubt if there had existed any joint right of recovery up to the time of Hopper’s death. But did any such right of action remain in him after the sale to plaintiff of his interest *194iii the debt due from the Rational Company?’ That was not, in terms, even an attempt to assign the unassignable tort cause of action. John V. Farwell Co. v. Wolf, 96 Wis. 10; Lane v. Frawley, 102 Wis. 373. So that we have not the question whether an attempted assignment of a nonassignable claim leaves any cause of action in the assignor. The question is very different. It is, in effect, whether, when one who has been defrauded into buying a credit, afterwards sells that credit for all it would have been worth if the false representations had been true, he has still a cause of action for deceit. The question would seem to answer itself. Deceit alone gives no right of action unless damage is suffered. Potter v. Necedah L. Co. 105 Wis. 25. As we have pointed out under Ro. 14, the difference in market value is not the measure of damage in the acquisition of debts. Foster v. Taggart, 54 Wis. 391. Surely, if a deceitfully sold promissory note was in fact paid by its maker, no cause of action in tort would exist, however valueless the note might have been. Why should its purchaser any more have a cause of action for damages if he had sold the note for its face value without recourse on‘ himself? He would no more suffer damage in the latter case than in the former. The principle is suggested in Barth v. Loeffelholtz, 108 Wis. 562. There it was pointed out that one who had been defrauded into becoming a creditor had two entirely consistent causes of action, and might pursue either or both; that he might sue ex con-tractu and have judgment on his debt, and afterwards sue in tort and have another judgment for his damages provided he had not obtained satisfaction; that one satisfaction would discharge both rights of action. That would seem to be the situation here; for Hopper in his lifetime had received, according to the evidence, full value for his share of this claim against the Rational Company. After that he had no right of action either on the debt or for *195■damages, and plaintiff might have sued alone for her own injury. That one of several joint sufferers by a tort may receive satisfaction of his share of the damage, and that ■thereupon the others may sue without him, but can recover •only their own shares, is sustained by the highest of English authority. Sedgworth v. Overend, 7 Term, 279; Bloxam v. Hubbard, 5 East, 407. Approved in America in Hart v. Fitzgerald, 2 Mass. 509, 511; Sherman v. Fall River I. W. Co. 5 Allen, 213, 215; Smith v. Aldrich, 12 Allen, 553, 556; Call v. Buttrick, 4 Cush. 345, 350; Lewis v. Lyman, 22 Pick. 437, 444. It seems obvious that’ at the time of Hopper’s ■death there existed no joint right of action in tort, and that plaintiff can now recover only her separate interest in the damage caused by defendant’s deceit. Error was therefore •committed in allowing recovery to the full value of the ■credit given, instead of only for five sixth‘s thereof.

17. The judgment is further vigorously assailed as not .supported by the verdict nor by any order of court, it having been entered by the clerk upon the filing of an order merely ■denying defendant’s motion to set the verdict aside and for judgment. The order of the court in that connection is .somewhat ambiguous, and perhaps did not warrant the clerk in entering the judgment. If, however, the judgment was warranted by the verdict, as the court apparently decided, :no prejudicial error would result. “We need not, however, discuss that question, since we have found reversal inevitable on other grounds. The situation, of course, will not repeat .itself upon another trial.

In the same connection, however, is raised one question upon which we ought to speak; that is, the award of interest by the court without any finding of the jury other than •the amount to which the plaintiff’s firm was induced to give -credit by the defendant’s misrepresentations. The appellant contends that in all actions for recovery of unliquidated ■damages interest can only be recovered as damages and in *196the discretion of the jury. The books contain many statements generally to this effect. The greater’ the antiquity the more general is that view, until we reach an age when interest as such received no recognition from the courts. It was, at most, permitted to juries as a method of punishment of a wrongdoer. In modern times interest has come to be recognized as a legal right enjoyed by a claimant, not merely as a mulct imposed on a defendant. Laycock v. Parker, 103 Wis. 161, 179. Treatment of interest as damages, and in the discretion of the jury, is still maintained to some extent, more in England than in America. In the latter, that view is becoming more and more confined to classes of recovery where the whole subject of damages, as measured by money, rests in the discretion of the jury; such as for personal injuries, defamation, and the like, where, as it is said, the injury has no real money value. Perley, Interest, 194. In such cases the rulé amounts to no more than that the lapse of time may, in the judgment of the jury, have increased the damages, and in estimating such increase they may use legal rates of interest as a basis. On the other hand is that class of cases where the damage is of a pecuniary.character, measurable in money with reasonable certainty, as where the conduct of the defendant has deprived the plaintiff of money or of property of reasonably definite money value. In that class of cases the trend of modern decision is to the proposition that full compensation can be made only by requiring reimbursement of the money value and the interest such money would presumably have earned in the hands of the party deprived of it. Interest is allowed as damages, it is true, but as compensatory damages, measured according to a certain rule of law which courts are bound to apply and not to leave subject to the discretion of juries. With this modern attitude this court has placed itself in entire accord, after careful deliberation, in J. I. Case P. Works v. Niles & Scott Co. 107 Wis. 9. That decision was reached *197after full consideration, of the contrary authorities, including the somewhat hasty remarks in Hinckley v. Beckwith, 13 Wis. 31, 37, and Allen v. Murray, 87 Wis. 41, 48, and overrules them so far as there is conflict. In accord with the views so adopted, there can be no doubt that one defrauded of money or .valuable property is entitled to recover not only such money or value, but also interest from the date of the deprivation, both of them as legal elements of his damage. John V. Farwell Co. v. Wolf, 96 Wis. 10, 20. It follows that, when the necessary facts are ascertained, the court may and should apply the law. When the value of the property lost and the date are found by the jury, rendition of judgment, including the interest, follows as necessarily as for the value itself. In the record before us there is a lack of definiteness as to when plaintiff suffered her loss. That did not occur until the time arrived when, according to her contract with the Rational Company and in accord with the contemplated dealing, she was entitled to insist on payment. The same considerations which led us to overrule the assignments of error discussed as Ro. 14 indicate the necessity of more definite information as to when the actual deprivation of money was suffered by plaintiff. So far as appears, it may not have been until later than May 23, 1893.

We find no other questions raised which, by reason either of their general importance or their probable significance upon another trial, justify protracting this opinion by their discussion. Whether some other rulings on evidence or some refusals of requested instructions may have constituted technical error or may not is not very material, since for errors already defined we must reverse and order new trial. So far as such questions are not answered by the general views expressed they are deemed unnecessary of discussion.

By the Court.— Judgment reversed, and cause remanded for a new trial.





Concurrence Opinion

Cassoday, 0. J.

I concur in the reversal of the judgment, in this case for errors mentioned in the opinion filed; but,, assuming that the plaintiff has the right to recover, then I dissent from the proposition that the plaintiff, as surviving partner of the firm, cannot recover the full amount of damages sustained by the firm by reason of the tort committed by the defendant. In my judgment, the defendant is not relieved from such liability by reason of the fact that the plaintiff purchased the interest of her partner in the assets and business of the firm. This view is sustained, as I think, by the authorities cited by the plaintiff’s counsel.

A motion by the appellant for a rehearing was submitted on the brief of Frawley, Bundy & Wilcox, attorneys, and G. M. Woodward’, of counsel.

The motion was denied September 24, 1901.