Templeton v. Warner

Bausman, J. The service of this appeal was after the signing, and before the entry, of the decree. Its filing was after that entry. The filing being a part of the taking of an appeal under our statute, we. hold that there was here an appeal after, and not before, a judgment. A motion to dismiss is consequently overruled. We also notice, but find it unnecessary to discuss, a motion to strike the statement of facts. That, too, is denied. This suit was begun in equity for specific performance, or damages as a mere alternative, of a written contract to buy [585] shares of stock and to deliver a note in payment of them, but plaintiff has no standing in equity, as he alleges no circumstances making a note peculiarly indispensable to his rights. His grievance was a proper one for damages only, and so the court ruled. The case then proceeded at law without a jury, as neither side claimed one or objected to that procedure. We have here a shareholder agreeing in writing to buy the stock of another shareholder who was also manager. The defendant, while he did not know as much about its affairs as plaintiff, was very far from being ignorant of the condition, and six months before he had warned plaintiff to do better as manager. Entering into the agreement after long discontent, he would now escape by showing that plaintiff represented certain assets, the bills payable, to be worth substantially more than they were. The agreement itself contains no warranties or representations at all. We do not find in the whole testimony anything to prove that any representations were false, that the few so-called representations uttered were other than mere opinions about value, that any opinions were regarded as important or given as inducements, or that defendant went into the bargain because he relied on them. What shall be said of a person who, endeavoring to brand another with fraud, can put his grievance so weakly as this: “I know he told me the business was in good shape, and it appears to me he told me that the bills receivable and bills payable were about equal, but I will not say for sure he did?” It is not thus that fraud is to be put in another man’s mouth, and he but pretends to have placed reliance on words who is not sure that they were ever uttered. The lower court having sustained this defense, the judgment must be reversed, and since, sustaining the defendants, the learned trial judge did not feel called upon to measure plaintiff’s damages, and the record here is not such that this court can do so, the cause is remanded for further proceedings not inconsistent with this opinion. Morris, C. J., Main, and Holcomb, JJ., concur.