National Bank of Merrill v. Illinois & Wisconsin Lumber Co.

Winslow, J. The appellant makes three general contentions: (1) That the evidence does not sustain the verdict; (2) that the court erred in admitting evidence; and (3) that the court erred in its charge to the jury. 1. The gist of the action was fraud. Unless the evidence showed that the loan was made in reliance upon materially false representations as to the capital and financial condition •of the corporation, there could be no recovery, because the debt was not due; and hence the first and fundamental question is whether there was sufficient evidence tending to •show such fraud, and to sustain a verdict to that effect. The representation admittedly made by Werden to the plaintiff’s cashier in March, 1893, when applying for a loan — 251 — and a line of credit at the plaintiff bank, was, in effect, that the defendant had a paid-up capital of $60,000, and was doing •a good business. The evidence is very full to the effect that this representation was reported to the discount committee of the bank, and was relied upon in making the first loan to the defendant in the spring of 1893, as well as in making the subsequent loans. It appears that substantially the same statement was made by Schultz and Flinn to Dun’s and Brad street’s commercial agencies in 1892 and 1894, with some additional statements as to liabilities and assets, and that the directors of the plaintiff in making loans to the defendant also consulted and relied upon the reports of the commercial agencies. The manner in which the $80,000 ■worth of capital stock was fully paid has been detailed in the statement of facts. In brief, it was as follows: Schultz, Flinn, and Werden purchased a saw- and planing-mill, with, adjoining real estate, at the nominal price of $20,000, and gave their notes for that sum, secured by a mortgage on the property. At the same time they organized the defendant corporation in Illinois, with an authorized capital stock of $60,000. Acting in their capacity as corporators and direct-tors of the corporation, they agreed with themselves in their individual capacity to purchase the saw- and planing-mill for $80,000, paying therefor by issuing $60,000 full-paid capital stock to themselves; the corporation assuming the $20,000 mortgage on the property. Thus it is claimed that the corporate stock became fully paid; and it is said in support of this claim that .the statute authorizes the issuance of stock for property estimated at its true value, as well as for money (B. S. 1878, sec. 1753), and that there was evidence to show that the saw- and planing-mill property, though bought for $20,000, was in fact worth $75,000 or $80,000. This, of course, is true; and it is also true that if stockholders honestly and in good faith put property instead of money into a corporation, and receive stock therefor, the fact that the — 252 — property may have been overvalued will not prevent tbe stock issued from being full-paid stock, even as against a creditor of the corporation; but the creditor who is seeking a remedy against stockholders or the corporation itself on the ground that its supposed full-paid stock was not such in fact must go further, and show, not only that the property in consideration of which it was issued was inadequate, but that actual fraud was committed in making the payment for the stock. Coit v. Gold Amalgamating Co. 119 U. S. 343; Whitehill v. Jacobs, 75 Wis. 474. In other words, it must appear that the corporation and the stockholders fraudulently agreed that stock should be issued and property should be received therefor at a valuation substantially in excess of its real value for the very purpose of creating apparently full-paid stock, and falsely holding the same out to the world as such. A gross and obvious overvaluation of property would be strong evidence of such fraud. Whitehill v. Jacobs, supra. Now, in the present case it may be that Schultz, Werden, and Flinn secured a rare bargain when they purchased tbe saw- and planing-mill plant in question; that the property which they purchased for $20,000 was in fact worth three or four times that sum; and it may be also that they honestly believed such to-be the fact, and, so believing, in good faith received $60,000 par value' of corporate stock for property for which they had simply given a promise to pay $20,000. If such were the facts, their stock was in fact fully paid, and the representation that the corporation had $60,000 of full-paid stock was true. On the other hand, there was ample evidence that the mills were grossly and obviously overvalued; and, as the authorities say, this is strong evidence of fraud in the transaction. If, therefore, the mill property was honestly and in good faith exchanged for the stock, the stock was full-paid stock, as to the world, even though the property was not equal to the par value of the stock. If, on the other hand, the property was fraudulently and substan — 253 — tially overvalued for the purpose of imposing upon the business public, then the stock was not full-paid, within the meaning of the law. Upon this branch of the case the ultimate question for the jury was, Did the corporation have $60,000 of full-paid stock, or did it not? And there was certainly ample evidence in the very nature of the transaction itself and the disparity in the prices at which the mill was bought and sold, to sustain a negative answer to this question. The conclusion is that the motion for nonsuit was properly overruled, and that there was sufficient evidence to sustain the verdict. 2. The evidence as to the statements made by the defendant’s officers to the commercial agencies with regard to the capital stock, assets, and financial condition of the defendant company in 1892 and 1894 was all objected to; and it is now argued that its admission, and the admission of the published ratings and reports made by the commercial agencies which embodied these statements, was erroneous. These statements all contained the same representation as to the paid-up capital stock of the concern as that made orally by Werden, and it was shown that they were consulted by the directors of the plaintiff bank, and relied upon, in part at least, in making the various loans to the defendant. The commercial agency which gathers and circulates reports as to the financial standing of business houses is an institution now so well established, and its reports are so universally used, that no court or merchant can plead ignorance of its purpose or functions. When a merchant states to such an agency his financial condition, he knows it is for publication to the business world, and that such publication will probably be consulted when he applies to any business institution for credit. He makes his statement, therefore, knowing that it will probably be used as a basis of credit. Upon- what ground can it be said that such a statement is not a representation made for the purpose of securing credit, — 254 — as fully as if made personally to each business house with which he has dealings ? Of course, the statement may become too remote in time to justify reliance upon it, or it may perhaps show upon its face that it is not made for the purpose of inducing credit (Macullar v. McKinley, 99 N. Y. 353), or the evidence may show other circumstances which forbid the idea of any reliance having been in fact placed upon it (Curtis Brothers & Co. v. Hoxie, 88 Wis. 41). Doubtless, in order to afford a basis upon' which to rest a verdict of fraud, it must appear that the merchant made the statement for the purpose of inducing credit; that it was substantially false, not merely erroneous in some particulars, because exact figures are not usually expected in such statements, but so materially false and misleading as to show wilful intent to deceive the business public; and it must be so proximately connected with the transaction in which the plaintiff claims he was deceived as to afford good ground, for believing that it was intended to be relied upon with reference to that or similar transactions. It must also appear that the statement was such as to deceive and mislead an ordinarily prudent man, and that it was communicated to the plaintiff, and believed and relied upon by him in granting the credit. When there is sufficient testimony tending to prove these facts, no reason is perceived why a verdict of fraud may not be founded upon a representation made through the medium of a commercial agency as well as upon a representation made orally to the plaintiff. Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31; Genesee Co. Sav. Bank v. Michigan Barge Co. 52 Mich. 164; Furry v. O'Connor, 1 Ind. App. 573. The members of the discount committee of the plaintiff’s board of directors were allowed to testify against objection as to what the cashier told them Werden had stated with regard to the capital stock of the company. This is said to be hearsay evidence. The claim is not tenable. It was nec — 255 — essary for the plaintiff to show that its directors relied upon Wer den’s representations in extending the credit. These representations were not made to any of the directors personally, except the cashier. Hence it was necessary to show what representations the cashier reported to the other directors, in order to show that the representations were relied upon by them. The rule is so elementary that it needs no-citation of authority. The defendant company made a voluntary assignment for the benefit of its creditors January 20, 1897, and the plaintiff offered the same in evidence. It was received against objection, and its reception is now urged as error. We think it was properly received. There was evidence tending to show that there had be'en no sudden change in the financial condition of the defendant, and the assignment was evidence that it was hopelessly insolvent and had been for some time, thus tending to contradict the alleged representations of Schultz made in 1895 and 1896, that the institution was doing well and making money. There were sundry other objections made to testimony which was received, but we do not deem it necessary to discuss them specifically. It is sufficient to say that we have discovered no-prejudicial error in any of the rulings upon testimony. 3. The defendant askéd the following instruction, and it was refused: “If the jury shall find from the evidence that, the plaintiff granted the credit forming the basis of its claim for recovery in this action upon any statement' made on behalf of the defendant, and authorized by it, to either commercial agency, the plaintiff cannot recover by reason'thereof in this action, unless the jury shall find that such statement, is false and made for the purpose of procuring credit, and that the plaintiff relied upon such statement in granting such credit, and, further, that such, statement was such as was. calculated, under the circumstances, to deceive a prudent man; and, if such statement had no direct connection with — 256 — the transaction of granting the credit in question in this case, the plaintiff cannot recover by reason thereof, as indicated in this connection, unless the jury shall also find that such statement was wilfully and intentionally made for the purpose of obtaining credit.” The court, however, gave the following instruction, which covers all the propositions asked by the defendant, in somewhat different language: “ In order to entitle the plaintiff to recover in this action, that is, to legally justify its action in rescinding the said promissory note of November 23, 1896, and declaring the money for which it was given to be due and payable immediately, and sue for the same, as was done, it is incumbent upon the plaintiff, in the manner stated, to prove to your satisfaction that the defendant’s said officers made the representations •charged, or some of them, concerning the defendant’s assets .and financial responsibility; that the statements so in fact made were, in some material respects charged, false in fact when made, and were so made for the purpose of obtaining credit, as before explained; that' they were such as would be liable to be believed to be true, and acted upon as such, •by an ordinarily prudent and careful man in the situation ■of the party to whom they were made, namely, to the president and managing directors of the plaintiff bank; that the said president and directors did in fact believe them to be true, and did in fact believe and materially rely upon such statements as true, in accepting the said note of November 23, 1896, in place of and in renewal of the note for a similar amount which matured on that day, and which had been given for a ninety-day loan made on the previous August 26th.” There was no error, therefore, in refusing to give the defendant’s proposed instruction, when its entire substance had been already embodied in the general charge. No other instructions were asked for by the defendant, nor does the brief call attention to any errors in the general ■charge, though many exceptions were taken to it; and here — 257 — we might perhaps close this opinion, having considered all the 'points made by the appellant which seem important enough to require special discussion, were it not fo'r one consideration, now to be stated. The charge of the court was quite long and full, but it omitted to state to the jury the principle enunciated under the first head in this opinion, namely, that, if the mill property was exchanged for the stock honestly and in good faith, then it was full-paid stock, hut if the property was fraudulently and substantially overvalued, for the purpose of deceiving the business public into believing that the stock was full paid, then it was not full-paid stock, as to creditors, and the representation that it was full-paid would be false. jSTo such instruction was asked or suggested. Doubtless it would have been given, if asked, because it was applicable to the case. The failure to give it was not directly raised by any exception that we can definitely point to, nor is the matter ■discussed in the brief, nor distinctly assigned as error. The court charged the jury fully as to what would constitute fraudulent representations for which the contract might be rescinded, in the terms just given in this opinion, and we can see no error in the general propositions there laid down. In the charge he does not refer to the representation as to capital stock separately, but treats all the alleged fraudulent .and false representations together. As applied to the representation concerning the $60,000 of full-paid capital stock, the charge says, in substance, that if that representation was ■materially false in fact, and made for the purpose of securing credit, and was such as would naturally be relied on by ■a prudent man, and was in fact relied on and believed by the bank when it extended the credit, then the plaintiff could rescind the contract. These general propositions are all true, but the court did not add, nor was it asked to add, an explanation of what facts would make the stock not full-paid stock. There were sufficient facts in evidence, if be258 lievecl by the jury, to justify this conclusion, but the guide was not given them by the charge. In the state of the-record, we think the question is not raised. The general instructions which were given were all correct, the specific instruction which would have been helpful to the.jury was not given, probably, because it was not asked, and there is no exception in the record which raises the question. Thus, the rule laid down in Weisenberg v. Appleton, 26 Wis. 56, seems to apply, namely: “ The charge, being correct in itself so far as it went, cannot be held erroneous by reason of omitting to instruct upon a particular point which might properly have been the subject of an instruction, but in relation to which none was asked.” By the Court.— Judgment affirmed.