Jones v. Estate of Ellis

TAFT, J. The plaintiff purchased of Ellis, the deceased, fifty shares of the capital stock of the Sioux City Valley Land Company and paid two thousand dollars therefor. The plaintiff claimed that the sale was effected by fraud on the part of Ellis, and the first question before us is : I. Does the action survive ; can it be maintained against the estate of Ellis? This depends upon the construction given s. 2446, V. S., which provides that among other actions, those of “trespass and trespass on the case for damages done to ***** personal estate shall survive.” The fraud which the plaintiff claims was committed by the deceased, was in making false representations in regard to the stock sold by him to the plaintiff. As a result of it, the plaintiff claims he paid money for property of no value. This was not doing damage to the plaintiff’s personal estate within the meaning of the statute. A fraud committed by one, the result of which creates a liability upon another to pay money, is not such a damage done to the latter’s personal estate as will create a cause of action which survives. The ruling of the court in this respect was correct. II. After the above ruling, the cause was tried under the contract aspect of the declaration ; the plaintiff claimed that the deceased in making the sale, warranted the stock. Upon this question the plaintiff proposed to show that the deceased in a sale of stock in the samé corporation to one Boynton, warranted the stock to the latter to be of value. This testimony was excluded and correctly so, upon the authority of Phelps v. Conant, 30 Vt. 277, and Aiken v. Kennison, 58 [548] Vt. 665. Whether the deceased warranted stock he sold Boynton was “res inter alios, etc” III. The depositions, of May and Baldwin, were offered and answers to certain interrogatories excluded. The plaintiff claimed it was competent to show the interest Ellis had in the corporation and his knowledge of its affairs; conceding this, none of the excluded testimony had any tendency to show that Ellis had any interest in the company, nor any knowledge of its affairs. Testimony that Ellis was a bondholder and received a discount and commission on sales of stock was admitted. There was nothing else in the excluded answers relevant upon the questions. The plaintiff further claimed the excluded testimony was admissible in that it tended to show the value of the stock. Its value in April, 1890, the time of the plaintiff’s purchase, was pertinent. The questions, the answers to which were excluded, were what were the assets and liabilities of the company in August, 1894. The court ruled that without anything to connect the condition of the company at that time with the state of its affairs at the time of the sale, its condition in August, 1894, was immaterial. This ruling was correct. The solvency of the company in August, 1894, was collateral and immaterial. IV. The remaining question relates to the charge. The coux-t charged as to the survival of the action, and as .to the warranty. The charge covered three printed pages, and the exception was general, viz. : “To all that part of the charge hereinbefore referred to.” The chax’ge that the action in its tortious aspect did not survive was correct. The charge not being erroneous in all respects, the exception, being general to the whole charge, cannot be sustained, even if there was error in some respects, which it is unnecessary for us to consider. Morrill v. Palmer, ante 1. Judgment affirmed and ordered certified to the probate coiirt.