68 W. Va. 176 | W. Va. | 1910
Albert A. Stalnaker complains of a decree of the circuit court of Barbour county, dismissing Ms bill, praying rescission of a contract of sale of shares of stock in a mining corporation,
This relief is sought on the ground of fraud, and certain facts are set forth which, it is urged, make out a case of rescission on that ground. These are substantially as follows: Under an option, given to Janes, plaintiff had sold the coal under his land for $2,400.00. As soon as he came into possession of this money, Janes induced him to buy ten shares of the capital stock in a corporation, known as the Chesterfield Heights Corporation, for $1,000.00, by making extravagant and unreasonable statements, concerning its value. This transaction having been completed, Janes induced him to take 5,000 shares of the capital stock of the Ures Consolidated Mining Company, whose principal office was in the city of Chicago and its mines in the Eepublie of Mexico. In’ effecting this sale, Janes represented that certain other persons were interested with him in the sales of the stock, under an agreement that none should be sold for less than 33 and 1-3 cents per share, but, out of alleged friendship and personal regard for the plaintiff, he offered it to him for 30 cents per share, and took his check at the higher rate of 33 and 1-3 cents and then refunded the difference of $166.66. In this connection, he professed great friendship for the plaintiff, on which ground he justified himself in deceiving his associates and selling exactly at cost, at the same time representing himself to be in possession of “inside information” concerning the value of the stock. Upon information and belief, it is alleged that the Ures Consolidated stock, sold by Janes and his associates in Barbour county, had been purchased by one Hawes at the rate of four cents per share, and he sold it to Janes and others at a small advance. Plaintiff bought his stock sometime in the year 1904, and brought this suit in 1906. All allegations of fraud and misrepresentation are denied in the answer. The answer also denies that the respondent sought the plaintiff and asked him to buy the stock and avers, on the contrary, that plaintiff sought, him and offered to buy stock. He also denies having represented the stock to have cost 30 cents per share. It is also denied that this stock was procured from Hawes. It also'sets up byway of estoppel a confirmation of the contract by a refusal on the part of the plaintiff to sell the stock back
Authority is invoked for the proposition that a false representation that a sale of corporate stocks is made at cost is ground for rescission, but the defendant swears the cost of the stock was never mentioned in the negotiations for sale, and there is nothing in the record that can be regarded as decisively settling the question of veracity between these two men. This is also true of the alleged representation 'as to personal knowledge of the company’s affairs or the value of its mines. Janes denies having made it. “Inside information” is a very indefinite expression anyhow, not necessarily signifying knowledge of specific facts. It is not pretended that Janes represented himself as having seen or inspected the company’s mines or gone over its books. Both of these parties resided in Barbour county and each probably knew the other had no personal knowledge of the-condition or value of the mines. Another alleged representation upon which the plaintiff says he relied is that the stock would pay a dividend in six months. As Janes was then a stockholder, it is insisted, upon the authority of Grim et al v. Byrd, 32 Grat. 293, that failure of such an assurance or prediction by him constitutes fraud. That case wholly fails to sustain this proposition. The expression of opinion in it was accompanied by many false representations, concerning specific material facts, bearing on the question of the value of the stocks, such as the indebtedness of the company and its earnings for past years. These false representations were made to induce belief that the stock would pay dividends within the time specified. Being false, it followed that the expression of the opinion itself was known to be a falsehood. We have nothing of that kind here. If Janes said what is imputed to him, concerning dividends, it was a mere expression .of opinion, unaccompanied by any false statement about the resources • or liabilities of the company.
An effort is made to prove the defendant and others guilty of having carried on a sort of conspiracy to defraud the farmers of Barbour county by selling them worthless corporate stocks,
That no guaranty of dividends in six months was relied upon or considered as the main inducement to the investment, is shown by the conduct of complainant himself. He gave his check for the stock September 17, 1904. This check was not cashed until January 13, 1905, about four months .later. Had he been dissatisfied, he could have ordered the bank not to pay the check, and thus kept the money 'in his own hands, while litigating the question of fraud. In January or February, 1906, he bought an additional 100 shares of the same stock from another man at 60 cents. This occurred more than a year after the first purchase and no dividends had ever been seen ■ or suggested as a reality. A plain inference of non-reliance upon such a guaranty or expectation arises from it.
A relation of confidence,;placing the parties on an unequal footing, and casting upon the defendant the burden of showing good faith on his part, in the transaction,- is said to arise out of the facts that the latter was an attorney at law and a holder of stock in the company and gave assurances of personal friendship in the course of the negotiation of the sale; but no- authority ’is cited for the proposition and we are not aware .of any. Such a relation generally rests upon some contractual obligation, duty or right, not a mere difference between the parties in respect to capacity or ability, natural or acquired. The addition of mere assurances of personal friendship' is wholly insufficient to convert this difference in business capacity into a confidential relation. The complainant was -not under the control of the defendant in respect to his person or property.. The latter was in no-sense his trustee and he was under no disability of any kind. There is no suggestion of mental incompetency on his part'or of undue'influence on the part qí
To sustain his defense, Janes filed the depositions of himself and Floyd Davis, the company’s mining engineer, residing in the state of Iowa. Objection to the reading of each of these was made. The exception to the former was based upon the refusal of the witness to disclose the names of persons to whom he had sold shares of stock in corporations in Barbour county, other than the complainant and affirm or deny certain alleged incidents of the negotiation of certain sales, known to have been made. On the refusal of the witness to answer the last of these questions, the complainant gave notice of his intention to object to the reading of the deposition and refused to cross-examine"' him further. The deposition of Davis was objected to on account of alleged insufficiency of the notice to take the same, in respect to time and place and thé name of the notary. The deposition was taken April 9, 1908, in Des Moines, Iowa, the place of residence of the witness. No notice appears in the record, but it shows a copy of the interrogatories propounded was delivered to the attorney for the complainant on April 3, 1908, which allowed ample time for consultation between the attorney and his client and the making of the trip to Des Moines. The exceptions admit notice of time and place,’ but deny its sufficiency, and the caption says the deposition was taken pursuant to notice. The letter of instructions to the notary public refers to a notice to take depositions at the office of Dr. Floyd Davis, Iowa Loan & Trust ■ Building, City of Des Moines, on the 9th day of April, 1908, as being enclosed therewith, and the deposition was taken at the office of Davis.
The exception to the deposition of Janes was properly overruled. He did not arbitrarily refuse to answer any questions. As the questions related to transactions between him and persons other than the complainant and in which he was not concerned, the witness had the’right to take the opinion of the court upon the question of their relevancy and materiality,
None of the recitals of the record, concerning notice of the taking of the deposition of Davis are in any way contradicted or disputed. They prove specification of time and place but not the manner thereof. If there was any ambiguity or indefiniteness, respecting either, it is not disclosed. Admitting there was such notice, and denying only its sufficiency, the complainant should have' caused a copy thereof to be brought up as a part of the transcript, to enable the court to see whether its terms were misleading. The facts disclosed by the record, as it appears here, cast upon him the burden of producing the notice itself or some other evidence to prove its insufficiency. Though not there stated in terms, this principle was observed in Bowyer v. Knapp et als, 15 W. Va. 277. The sheriff had given the party a misleading copy of the notice. This copy was introduced to show its terms and character. Notice being admitted and only its sufficiency questioned, the presumption is that its terms were' reasonably certain and nothing more is required. Our statute, unlike those of some other states, requires only reasonable notice of the time and place of the taking of depositions, section 35, chapter 130, Code of 1906. It does not require specification or disclosure of the name of the officer before whom a deposition is to be taken. We are, therefore, of the opinion that the exception to the deposition of Davis was properly overruled.
Dpon the principles and conclusions, above stated, the decree will be affirmed.
Affirmed. ’