Union National Bank v. Hunt

76 Mo. 439 | Mo. | 1882

Lead Opinion

Henry, J.

We are satisfied with the conclusion reached by the court of appeals, but differ from that court with respect to the doctrine announced in the following paragraph of its opinion : “He, Theodore Hunt, chose to Lake the opinion of the officers of the bank, as to its condition, without any effort to get at facts on which the opinion might be based. There was here no exercise of ordinary diligence and attention.” Neither Peers v. Davis, 29 Mo. 186, nor Matlock v. Meyers, 64 Mo. 581, cited by the court of appeals as sustaiñing that proposition, supports it, while the contrary was expressly ruled in Wannell v. Kem, 57 Mo. 478; and numerous authorities are cited in the opinion delivered by Judge Napton which fully sustain the doctrine therein announced. The evidence on this point, tended to prove that what Pollard said with regard to the bank’s condition, was not a mere expression of opinion, but the statement of a fact, peculiarly within the knowledge of its-officers. Although defendant had the right, as a stockholder, to inspect the books, and, by an examination might have ascertained whether the statement was true or false, an acquaintance with bankrbook-keeping, and considerable time would have been required for such an examination;, and, under such circumstances, the defendant may rely upon the assurance of the officers of the bank, and not subject himself to the imputation of negligence . for a_ failure to examine the books of the bank.

The appellant’s counsel complain of th©-réfusal of the fifth instruction asked for defendant. We agree with the-court of appeals that: “ Expressions of opinion, commendation of the subject of the contract, statements as to productiveness and value, are no grounds for setting a sale-aside although they are shown to be false.” Gordon v. Parmelee, 2 Allen 213; Brown v. Castles, 11 Cush. 350. The instruction was, therefore, erroneous wherein it declared that if Aull & Pollard represented to the defendant, that each of said shares, was worth $100, and that said representation was known to Aull or Pollard to be false when made, it rendered the note sued on void. But for this vice the instruction should and probably would have been given ;. and no instruction was asked by defendant, on that subject, submitting the proper question to the jury.

All concurring,

the judgment is affirmed.

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Rehearing

On Rehearing.

Henry, J.

We adhere to the opinion heretofore delivered herein, with respect to the principles of law therein enunciated, but reverse the judgment and remand the cause for the error of the court in giving instruction No. one asked by plaintiff. We declared in the original opinion, that instruction No. five asked by defendant wap erroneous, in that it told the jury, that if either of the representations mentioned therein was false, and known to Aull & Pollard to be false, plaintiff could not recover, holding that the representation in regard to the value of the stock was a mere expression of opinion or commendation of the subject of the contract, and afforded no ground for setting aside the sale; and declared that but for that vice in the instruction it should have been given. We entirely overlooked the plaintiff’s instruction No. one, '^“^shich declares that neither of those representations,- if made',"a§-alleged, and proved to be false, afforded any defense to the~action=- -The judgment is reversed and the cause remanded,

all the judges concurring.