Nicolaisen v. Toffelmier

BARNARD, J., pro tem. The facts in this case are essentially the same as those in Flores v. Toffelmier et al., ante, p. 339 [275 Pac. 824]. The allegations of the complaint and the findings of the court are about the same. The main differences are that this plaintiff purchased stock in the San Leandro Canning Company, Inc., on the second and fifth days of May, 1921, respectively, and from one Lee Mills, not from any of the defendants. The said Mills was an agent working for two of the defendants only. This action was filed in July, 1924, was tried jointly with the Flores case above mentioned, and two other cases this day decided, and this appeal is from a similar judgment in favor of the defendants. Appellant claims, that,he.purchased stock because of representations contained in the printed prospectus discussed in the case of Flores v. Toffelmier et al., supra, and the case of Brewis v. Toffelmier et al., ante, p. 329 [275 Pac. 819]. The defendants denied having authorized the use of the said prospectus after November, 1920. The court decided, upon sufficient evidence, that the representations *343 aforesaid were true, and not false. The ordy exception is in the matter of not paying commissions. If this be regarded as a continuing misrepresentation, or if it was actually used in May, 1921, by authority of the defendants, and if it be a material false representation, there is evidence that the appellant herein did not believe the same. The record shows that he testified that at the time he understood the salesman got a commission out of the stock he bought. Having thus discovered the falsity of this particular representation, which he says he considered so important, he was put on his guard as to any other misrepresentations. These facts, with those referred to in the cases of Flores v. Toffelmier et al., supra, and Brewis v. Toffelmier et al., supra, support the finding of the trial court that the misrepresentations complained of were not made, were not relied upon, were in any event barred by the statute of limitations, and that no conspiracy existed. For the reasons set forth herein, and in the two cases just named, the judgment is affirmed. Tyler, P. J., and Knight, J., concurred. A petition for a rehearing of this cause was denied by the District Court of Appeal on April 1, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 29, 1929. All the Justices present concurred.