165 N.W. 4 | S.D. | 1917
This cause was before us upon appeal from a judgment rendered on a former trial, our opinion being- reported-in Tuthill v. Sherman, 36 S. D. 237, 154 N. W. 518. Reference is made to such opinion for a statement of the cause of action thén pleaded. It will be seen that, upon the former trial, plaintiff sought to recover the alleged purchase price of certain insurance stock, such alleged1 right of recovery being based upon á written contract the material parts of which will be found recited in our former opinion, plaintiffs theory being that thé contract was one’ of sale under which-title to-the ten'shares 'of stock had'passed to>
Plaintiff’s assignments of errors present in reality but two matters: Were the facts proven sufficient to justify the court in submitting to the jury the question of fraud? If the answer to the first question should be in the negative, then was there such undisputed -evidence as to the value of the insurance stock as to entitle plaintiff to- a direction of verdict?
Defendant’s assignments of error present but three matters: Was it error to allow plaintiff to amend his complaint? Was- it error to exclude certain testimony offered upon the question of the value of the insurance stock? Was there error in the instructions given and in the refusal to give certain instructions?
We will consider the various questions raised in what seems to us to be their regular order, to^-wit: (1) That relating to the amendment of the complaint. (2) That relating to the exclusion of evidence as to value of insurance stock. (3) Those relating to plaintiff’s right to- an instructed verdict, including therein: (a) Question of sufficiency of proof o-f fraud; (b) Certainty as to highest value of insurance stock under the undisputed evidence. (4) Those relating to instructions given and refused.
“What evidence has been offered to show that it had an actual-value greater than its par value? N-one whatever. No testimony was introduced to show the actual value of the stock, and n-o- evidence as to the actual value of the property of the corporation. The report of the cashier to- the Comptroller is not evidence of the value either of the property or the stock. It does not purport 'to, give an estimate of the value of either. It is apparent that it was not within the scope or purpose of the report to- declare, upon the actual values of the various items of property owned by the corporation, and it does not do s-o. It is also- apparent that the sum deduced from such reports as book value are purely arbitrary, and have no reference to- actual value. This can be seen at once by considering that the actual value of the stock w-ould necessarily rise or fall with -changes in the actual value of the property of the corporation, but the book value would not change. It would remain fixed and entirely unresponsive to conditions rendering the assets of the -bank highly valuable or entirely worthless. * * * Whether the report was admissible for any purpose we need not discuss or determine. It is sufficient to say that it did not furnish, evidence of the value -of the assets, or data from which -the actual value of the stock could be deduced.”
Long after the trial closed and the jury had1 been discharged, plaintiff asked to have the verdict amended so as to grant plaintiff 3 recovery in the sum of $2,250 instead of $800. Defendant questions the correctness of the method 'by which plantiff sought to attack the justness of the verdict. We do not deem it necessary to consider whether, if the amount for which the verdict should have been rendered was certain, such a motion would lie. Suffice it to say that, for reasons already stated, the highest value of said stock — even basing the same on the “statement" — is open to dispute, and was therefore a question for the jury.
To a proper consideration of'this question a clear understanding of defendant’s answer and of the matter testified to by defendant is necessary. Concisely stated, the answer alleged that defendant, being desirous of obtaining purchasers for a certain increase of stock of the insurance company, had offered to enter into written contracts with certain of such purchasers, guaranteeing a dividend on such stock, provided such purchasers would agree in writing to turn over and deliver to defendant all dividends in excess of 10 per cent, and to give defendant the privilege at any
*474 “He (meaning 'defendant) ©ays, ‘If you will falce this stock I will return the money you pay me with 6 per cent, interest from this time if you are dissatisfied with the stock” that “I told him' that was all right, that I would rely upon his statement, and that I would take the stock, and I did take it.”
Defendant testified that: In the fore part of October, 1909, he and plaintiff met- at defendant’s office in- connection with another business matter; that, as plaintiff was about to leave" he said, “About that.matter between us of the purchase of my stock;” that in answer he said, “Did I agree to buy your stock?” That plaintiff answered, “Yes.” - That, owing to the very confidential, relations -existing between them, he never thought of doubting plaintiff’s word. That he h-estitated a bit, not wanting to buy it then, and plaintiff said “Any time later.” That that was about all there was to it. That later he received a letter from plaintiff, in which plaintiff wrote:
“You saidl you would be willing to give me a guaranty to use "in -case anything happened to you. * * * I am sending you one to sign if you wish. * * *” -
That the instrument inclosed with such letter was not in proper form. That he prepared and sent to plaintiff the contract sued -on. That in entering into such contract he relied upon the above oral statement of "plaintiff. That at the time he was soliciting perstons to buy stock in 1906 he had‘entered into contract with some purchasers, whereby he had- guaranteed to them certain dividends on that stock for certain years, they contracting to give • him all excess of dividends, if any, with privilege of repurchasing such stock. That he "relied upon plaintiff’s false statement. That after-wards, upon looking over the -old correspondence between ’ himself and plaintiff, he discovered the falsity of plaintiff’s statement. That he then was- able to- recall "just what took place' at the time plaintiff purchased his- stock; that the true facts were that he" -offered to enter into a contract "with plaintiff such" as he "had enteréd into with -other's, but, that plaintiff refused.
" We deem it important to note that defeftdant did not ’ claim to "have "ever forgotten- the nature of the contracts’entered into with the" other -otirchasers; neither'did1 be claim that ‘ plaintiff’s representation’led-him- to believe that he had agreed'to reptirt chase such’" stock — but'" upori" the other ’hand he'swore tha!t such
“Sherman agreed wi-t-h * * * Tuthill to guarantee to party of the first part 6 per cent, interest on his investment.” Moreover, in the letter in which -defendant sent the contract to plaintiff, he e-tated as a -reason for not signing the form of contract prepared by plaintiff:
“I think * * - * -that what I return * * * would contain more information for others who might be called upon to settle the matter for us.”
While from the above one might conclude that defendant entered into the contract under the mistaken belief that he had formerly made -the same contract with plaintiff that he had with others; and while, if plain-tiff had represented to ■him, as alleged in the answer, that he “had agreed with the plaintiff to guarantee to the plaintiff 6 per cent, per annum income upon his investment,” one could find from such representation something which would naturally, -owing to defendant’s ’ confidence in.-plaintiff, lead to such mistake, we are unable to- find in the testimony of defendant anything to establish the only representation pleaded by defendant; nor can we find, in the representation by plaintiff -that defendant had agreed to repurchase the stock, -even if such representation had been the one alleged, anything that would indicate any -intent -on -the part of plaintiff to lead defendant to believe that plaintiff had accepted the offer which defendant made him back -in 1906. Common sense would certainly lead plaintiff, if he remembered wh-at actually occurred between these parties and it was as claimed by defendant, and if he was desirous of deceiving defendant and getting him to enter into a contract, to have made some such representation as the one pleaded, and not such an one as 'defendant swore was made. The most one could possibly conclude, under all the evidence, construing it as favorably as one could for defendant, is that, if plaintiff’s representation- was false, it was made because his memory was at fault, and
W.as such error prejudicial? Something caused the jury to give the plaintiff a verdict of only $800 when, under the evidence received, he was clearly entitled to some amount far in excess of the $800. What led the jury, to overlook the evidence and the instructions of the co-unt on -the question of amount of damages? We must presume that the jury intended to- fairly consider this -case. We are unable to explain their verdict, except upon the ground1 that i-t was affected by the fact that they allowed some -doubts as to the existence of. the defense pleaded to influence their action in determining the amount of their verdict.
Defendant contends that the trial' court erred in both giving and refusing instructions relating to- the elements of that fraud 01-deceit which renders an apparent consent to a -contract not a legal consent. As there probably will be -another trial of this cause, we might feel in -duty bound to consider the questions so- raised ■to the end that the trial court be guided' aright upon such further trial, if it were not f-or the faot that, in the light of defendant’s sworn testimony, we cannot conceive -how he can longer urge his present -defense.
We are therefore of the opinion that -the trial court erred in its rulings excluding evidence offered- by defendant, and1 in its ruling submitting the -question of fraud to the jury; that, in the ligh-t of the verdict, the first of these rulings was nonprejudicial and the other prejudicial.