Welling v. Schiller

McAllister, J. The only question involved in this case is the sufficiency of one or both of the special pleas, as pleas of failure of consideration. Unless the matter averred amounted to an express warranty as respected the shares of stock, or a fraudulent misrepresentation of some definite, material fact relating to the sale thereof, neither plea was good. It is manifest that neither plea sets up an express warranty. The only supposed misrepresentation as to a definite matter of fact, is based upon the averment that Schenbeck, the seller of the shares and payee in the note, represented that the stock was valuable and would become more valuable, whereas in fact it was worthless and he knew it. The general ride, as to such misrepresentations constituting such fraud as may be the basis of an action for deceit, are collated in 3 Wait’s Actions and Defenses, p. 435, with the authorities in support of them. It is there said: '“General representations made by a vendor as to the value of property he offers for sale, or as to the price he has been offered for it, will not, excepting in extreme cases, be regarded as evidence of a fraudulent intent. One who relies upon such assertions, made by a person whose interest so readily prompts him to invest the property with exaggerated value, docs so at his peril and must take the consequences of his own imprudence. Manning v. Albee, 11 Allen, 520, 522; Curry v. Kayser, 30 Ind. 214; Ellis v. Andrews, 56 N. Y. 83; Dimmock v. Hallett, L. R. 2 Ch. App. 26; Anderson v. Hill, 2 Sm. & M. (Miss). 679.” To which may be added Noetling v. Wright, 72 Ill. 390; Medbury v. Watson, 6 Met. 259; Davis v. Meeker, 5 Johns. 354; Bump’s Kerr on Fraud, p. 82 et seq. The pleas, neither of them, set out the transaction of the sale of the shares of stock otherwise than as an executed sale of a specific, ascertained subject-matter. It does not appear that the shares were sold as being of any particular description; that the corporation issuing them had not and never had any capital; nor is it averred that the certificates for the shares were spurious. Torrey v. Buck, 1 Greene Ch. (N. J.) 366; Forbes v. Pausinsky, 14 Ill. App. 1, and books there cited; Mida v. Geissman, 17 Ill. App. 212. We think the pleas were each of them substantially defective and for that reason affirm the judgment. Judgment affirmed.