Strong v. Repide
213 U.S. 419
SCOTUS
1909
Check Treatment
Me. Justice. Peckham,

аfter making the foregoing state-' ment, delivered the opinion of the court.

The Court of First Instance at Manila gave judgment in-favor of the plaintiffs on two grounds discussed in the opinion, one ground being that the agent of plaintiff, by whom the sale was' concluded, had no .authority to make it, and hence the délivery of the stock by him to defendant’s agent was illegal; the other ground was that the defendant had been guilty of fraud in concealing certain facts from the seller affecting the value of the stock'.at the'time when its sale- was concluded.

Upon appeal to .the Supreme Court of thе islands the judgment was affirmed'by a divided court, upon the ground of the *429 lack of authority of the plaintiff’s agent to make the sale, but not upon the ground of the alleged fraud on the part of the defendant. Two of the judges dissented, on the ground that there was authority to make the sale, although they agrеed with the majority that there was no fraud. -

One of the majority held not only that, there was no authority to sell, but that there was fraud, ‍‌​‌‌‌​​​​​​‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‍and therefore only, concurred in the result in affirming the judgment for the plaintiff.

When the motion for a new trial was subsequently granted on account of newly-discovered evidencе the majority of the court, on the authority of the second power of attorney (which was the newly-discovered evidence then received), held that it was sufficient to authorize the plaintiff’s agent to make the sale he did in her behalf, and as the májority held'-there was no fraud in the case,- the judgment for plaintiff was reversed and the complaint was dismissed.

Mr. Justice Johnson dissented, and filed a dissenting opinion in favor of the affirmance of the judgment of the Court of First Instance on both the grounds taken by it.

We are now called upon to review the judgment of the Supreme Court.-dismissing the complaint of the plaintiff. If the purchase of the stock by the defendant was obtained by reason of his fraud or deceit, it is not material to inquire whether the agent of the plaintiff had power- to sell the stock-.- If fraud or deeeit existed, the sale cannot' stand. We shall therefore, determine the question whether or not there was. evidence of such fraud or deceit as would.avoid the sale.

Although there is no technical finding of facts by the Court of First Instance, yet in its opinion that court does state facts upon which it bases its judgment, and which may be referred to for the purpose of determining what the facts are. On appeal’or writ of error from the judgment of the Supreme Court of the Philippine Islands the facts (when the courts below differ) will be reviewed by this court under the tenth section of the act of' July 1,1902, c. 1369, 32 Stat. 691. De la Rama v. De la Rama, 201 U. S. 303, 309.

*430 A careful perusal of the evidence brings us to the conclusion that it was ample to sustain the judgment of ‍‌​‌‌‌​​​​​​‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‍the Court of First Instance, considered with reference to the law applicable to the Philippine Islands.

The Civil Code of that jurisdiction after providing by article 1261 for the, requisites of a contract, among which is the “consent of the contracting parties,” says in article 1265 as follows: “Consent given by error, under violence, by intimidation, or deceit, shall be void.”.. Articles 1266 to 1268, inclusive, explain the meaning of the words as used in article 1265, and describe what may be error, under violence or by intimidation. It is then provided by article 1269 that “There is deceit when by words or insidious maсhinations on the part of one of the contracting parties the other is induced to execute a contract which without them he would not have made.” The meaning'of the words “insidious machinations” may be said to be a deceitful scheme or plot with an evil design, or, in other words, with a fraudulеnt purpose. Thus, the deceit #hich avoids the contract need not be by means' of misrepresentations in words. It exists where the party who obtains the consent does so by means of concealing or omitting to state material facts, with intent to deceive, by reason of which omission or сoncealment the other party was induced to give a consent which he would not.otherwise have given. Article 1269. This; is the rule of the common law also, but in both cases it is based upon the proposition that, under all the circumstances of. the ■case, it was the duty of the party who obtained the consent, acting in good faith, to have disclosed the facts which he concealed. Stewart v. Wyoming Cattle Ranch Co., 128 U. S. 383, 388. This was the Spanish law before the adoption of the code. Partidas 5, Titulo 5, Ley 57; Partidas 7, Titulo 16, Ley 1. See also Scaevola, Codigo Civil, Articles 1269,1270. In such cases concealment is equivalent'tо misrepresentation.

The question in this case, therefore, is whether, under the circumstances above set forth, it was the duty of the defendant, acting in good faith, to disclose to the agent of the plaintiff *431 the facts bearing upon or which might affect the value of the stock.

If it were conceded, for the purpose of the argument, that the ordinary relations between directors and shareholders in a business corporation are not of such a fiduciary, nature as to make it the duty of a director to disclose to a shareholder the general knowledge which he may possess regarding the value of the shares of the company before he purchases any from a shareholder, yet there are eases ‍‌​‌‌‌​​​​​​‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‍where, by reason of the special facts, such duty exists. The supreme courts of Kansas and of Georgia have held the relationship existed in thе cases before those courts because of the special facts which took them out of the general rule, and that under those facts the director could not purchase from the shareholder his shares without informing him of the facts which affected their value. Stewart v. Harris, 69 Kansas, 498; S. C., 77 Pac. Rep. 277; Oliver v. Oliver, 118 Georgia, 362; S. C., 45 S. E. Rep. 232. The case befоre us is of the same general character. On the other hand, there is the case of Board of Commissioners v. Reynolds, 44 Indiana, 509-515, where it was held (after referring to cases) that no relationship of a fiduciary nature exists between a director and a shareholder in a business corporation. Other cases are сited to that effect by counsel for defendant in error. These cases involved only the bare relationship between director and shareholder. It is here sought to make defendant responsible for his actions, not alone and simply in his character as a director, but because, in consideration of all the existing circumstances above detailed, it became the duty of the defendant, acting in good faith, to state the facts before making the purchase. That the defendant was a director of the corporation is but one of the facts upon which the liability is аsserted, the existence of all the others in addition making such a combination as rendered it the plain duty of the defendant to speak, He was not only a director, but he owned three-fourths of the shares of its stock, and was, at the time of the purchase of the stock, administrator generаl of the company, with large. *432 powers, and engaged in the negotiations which finally led to the sale of the company’s lands (together with all the other friar lands) to the Government at a price which very greatly enhanced the value of the stock. He was the chief negotiator for. thе sale of all the lands, and. was acting substantially as the agent of the shareholders of his company by.reason of his ownership of the shares of stock in the corporation and by the acquiescence of all the other shareholders, and the ñegotiations \tfere for the sale of the whole of the property of the company. By reason of such ownership and agency, and his participation as such owner and agent in the negotiations then going on, no one knew as well as he the exact condition of such negotiations. No one knew as. well as he the probability of the sale of the lands’ to the Government. No one knew as well as he the probable price that might be obtained on such sale. The lands were the only valuable asset owned, by the company. Under these circumstances and before the negotiations for the salе were completed the defendant employs an agent to purchase •the stock, and conceals from the plaintiff’s agent his Own identity and his knowledge of the state of the negotiations and their probable result,, with which he was familiar as the agent of the shareholders and much of which knowledge he obtained while- acting as such agent and by reason thereof. The inference is inevitable that at this time he had concluded to press' the negotiations for a sale Of the lands to a'successful conclusion, else why would he desire to purchase more shares which, if no salе went through, were, in his opinion, worthless, bécause of the failure of the Government to properly protect the lands in the hands of théir then owners? The agent of the' plaintiff was ignorant in regard to the state of the negotiations for the sale of the land, which negotiations and their probable rеsult .were a most material fact affecting the value'of the shares of stock of the company, and he would not have sold them, at the price he did had he. known the actual state of the negotiations as to the lands and that it was the defendant who was seeking to purchase the stоck.- Concealing his identity when’ *433 procuring the purchase of the stock, by his agent, was in itself strong evidencp of fraud on the part of the defendant. Why did he not ask Jones, who occupied an adjoining office, if he would sell? But by concealing his identity he could by such means the more easily avoid any qúestions relative to the negotiations for the sale of the lands and their probable result, and could also avoid any actual misrepresentations on that subject, which he evidently-thought were necessary in his case to constitute a fraud. He kept up the concealment as lоng as he could, by giving the check of a third person for the purchase money. Evidence that he did so was objected to on the ground that it could not possibly even tend to prove that the prior consent to sell had been procured by the subsequent check given in payment. That was not its рurpose'. Of course, the giving of the check could not have induced the prior consent, but it was proper evidence as tending to show that the concealment of identity was not a mere inadvertent omission, an omission without any fraudulent or deceitful intent, but was a studied and intentional omissiоn to be characterized as part of the deceitful machinations to obtain the purchase without giving- any information whatever as to the state and probable result of the negotiations, to the vendor of the stock, and t,o in that way obtain the same at a lower price. After thе purchase of the stock he continued his negotiations for the sale of the lands, and finally, he says, as administrator general of the company, under the special authority of the shareholders, and as attorney in fact he entered into the contract of sale December 21, 1903. Thе whole transaction gives conclusive evidence of the overwhelming influence defendant had in the course of the negotiations as owner of a majority of the stock and as agent for the other owners, and it is clear that the final consummation was .in his hands at all times. If under all these fаcts he purchased the stock from the plaintiff, the law would indeed be impotent if the sale could not be set aside or the defendant cast in damages for'his fraud.

The Supreme Court of the islands, ‍‌​‌‌‌​​​​​​‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‍in holding that there was- *434 no fraud in the purchase, said that the responsibility of the directprs of a cоrporation to the individual stockholders did not extend beyond the -corporate property actually under the control of the directors; that they did not owe' any duty to the members in respect to their individual stock, which would prevent them from purchasing the same in the usual manner. While this may in gеneral be true, we think it is not an accurate statement of the case, regard being had to'the facts above mentioned.

It is said that by the code of commerce of the Philippine Islands the directors are declared to be mandatories of the society, and that by article 1459 of the Spanish Civil Code they are prohibited from acquiring by purchase, even at public or judicial auction, the property the administration or sale of which may have been entrusted to them, and that this is the extent of the prohibition. This provision has no reference to the purchase fоr himself, under such facts as existed here, by an. officer of a corporation, of stock in the corporation owned by another. The case before us seems a plain one for holding that, .under the circumstances detailed, there was a legal obligation on the part of thе defendant to make these disclosures.

It is further objected, however, that the plaintiff, Mrs. Strong, denied that she had ever authorized her agent to sell this stock, and therefore by her own evidence there had never been any consent by her, obtained by fraud or otherwise,, be-, cause there hаd never been any'consent’at all. There is nothing in this objection. Mrs. Strong contended that such authority as she had given never authorized her agent to sell this stock. That had nothing to do with the obligation of the defendant to make the disclosure of the facts already adverted to before the purchase of the stock from plaintiff’s agent, and if, !by reason of such failure, the defendant was guilty of a fraud in procuring’ the purchase from the plaintiff’s agent it was a fraud, for which hs- became liable to the plaintiff, even though the plaintiff maintained that her agent was not authorized to sell. The court held that he was authorized, and therefore if he sold by *435 reason of the fraud committed by defendant the plaintiff was thereby injured and the defendant became liable. In legal effect her consent was obtained by the fraud.

We have not overlooked the objections made in regard tо the form of- the judgment in the Court of First Instance, but are of opinion ‍‌​‌‌‌​​​​​​‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌​‌‌‌​​‌‍that such objections are not of a material nature, and we are disposed to follow the course pursued by that court', in this case.

Other objections made by the defendant’s counsel we have examined, but do not regard them as important. We therefore reverse the judgment of the Supreme- Court, "dismissing the complaint, and affirm that of the Court of First Instance, and

. It is so ordered.