Schultz v. Andrews & Co.

Owen, J. Unless the verdict 'is unsupported by the evidence or tainted .with error it supports the judgment. Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790; Karls v. Drake, 168 Wis. 372, 170 N. W. 248; Swoboda v. Rubin, [95] 169 Wis. 162, 170 N. W. 955. We have had some doubt as to whether the plaintiff was justified in relying upon the representation that the stock was worth $13.50 per share on the Chicago market upon the day of its purchase. Without any explanation, the statement would seem sufficient to put the most credulous upon inquiry. According to the testimony of plaintiff, however, he asked why defendant was not selling it on the Chicago market instead of offering it to,him at $8 if the fact was as represented, to which the defendant’s manager replied that they had the stock, which they were able to sell at $8 per share, and that they were using it for the purpose of making future business friends. The jury evidently accepted this explanation, and by its answer to the seventh question found, in effect, that plaintiff was entitled to rely thereon. In view of the fact that business concerns customarily expend large sums of money in advertising, and otherwise, for the purpose of extending their business and increasing their business acquaintances and friendships, we cannot say that the finding of the jury in this respect was not justified. While the circumstance is rather unusual, we cannot say,that the plaintiff was not warranted in accepting, and relying upon, the assurance that the prospect of future business was the motive which prompted the defendant to sell the stock to him at $8 per share. It is to be noted, also, that plaintiff did not rescind the contract of purchase until April 6, 1918, more than five months after the contract of purchase was made. It is claimed by the appellant that plaintiff’s letter to it under date of November 13th indicates that he had discovered the falsity of the representations on that date, and that he should promptly have rescinded upon the discovery of the fraudulent representations, and that a rescission on April 6th following was tqo late as a matter of law. Ordinarily this would be true, but we think the following circumstances make the question of whether he acted with reasonable [96] promptness one for the jury:-First, there is the reply of the defendant to plaintiff’s communication of November 13th. In this letter it gave him assurance that if there were any instances of sales of the stock at $4 per share they were isolated . ones and the result of financial necessities. The letter, taken as a whole, was very reassuring and was well calculated to impress the plaintiff with the thought that his information was erroneous, and that, after all, his stock was as represented. Then, too, it is to be remembered that Andrews & Company guaranteed that at the expiration of ninety days the stock could be sold at a nice profit. In reliance upon this feature of the contract, plaintiff,* on the 28th day of January, requested Andrews & Company to make sale of the stock, and on January 30th they notified him that they had noted his order for sale of the stock at $8.50 per share. While their communication did not give him assurance of a speedy sale, neither was there any intimation of the hopelessness thereof. The act of the defendant in listing the stock for sale at $8.50 justified the plaintiff in awaiting their further advices in the matter and relieved him from taking immediate action in the nature of a rescission. In .fact, there is no evidence that at that time plaintiff knew the facts concerning the real value of the stock, but, on the contrary, it tends-to show that he was still relying upon the assurances given him and the representations made to him by the defendant. At no time between January 30th and April 6th did defendant advise plaintiff that a sale of the stock for $8.50 could not be secured. This conduct on the part of the defendant was really a continuing, tacit assurance on its.part that the stock could be disposed of at a profit. This is especially true in view of the fact that the defendant made no demand for the payment of the balance due on the stock, which became due ninety days from the date of the contract of purchase.. Under these circumstances, we think it was for the jury to say whether plaintiff acted with reasonable promptness in rescinding the [97] contract of purchase, and its finding in this respect cannot be disturbed. Appellant makes the further point that the plaintiff failed to prove that the stock was not worth $13.50 on the Chicago market on October 29, 1917. It is true that there is no evidence in the case showing the value of the stock on the Chicago market on that day. The deposition of the defendant’s Milwaukee ■ manager, however, was taken otherwise than as a witness under the provisions of sec. 4096, S'tafs.' and read in evidence. He testified that in October, 1917, he was manager of the defendant’s office at Cleveland; that the market for the Empire Tire & Rubber Company stock was made ‘ through defendant’s sales of it. • The market was running at their asked price in October, 1917, from $7.50 to $8 and that to his knowledge the highest price paid’for this.stock up to October 29, 1917, was $9. In view of this testimony of the manager of the defendant’s Milwaukee office, we think it was unnecessary for plaintiff •to prove the value of the stock on the Chicago market on the day of purchase. It appears from his testimony that the market was what Andrews & Company made it, and that up to the day of the contract of purchase it had not been above $9 anywhere. If the defendant was prejudiced by this testimony it was within its power to show what the value of the stock was on the Chicago market on the day in question. This it failed tó do, and the inference is irresistible that it was neither $13 nor $13.50. Appellant further asserts that there is no evidence in the case to show that the stock was represented to be of the value of $13 on the Chicago market, and it points out that the evidence of the plaintiff is to the effect that it was represented to be $13.50. The plaintiff did so testify. The allegation of the complaint, however, is to the effect that it was represented to be of the value of $13. In view of this allegation of the complaint the court inserted' the sum of $13 in the first question of the special verdict instead of [98] $13.50, and explained to the jury his reasons for doing so and told them to answer the first question “Yes” if they found that the representation was made that the stock was selling on the Chicago market at either $13 or $13.50. There is nothing substantial to this contention of appellant. As mentioned in the statement of facts, the complaint sets forth two causes of action: one for damages because of the fraudulent representation, and the other for the recovery of the money paid, upon rescission of the contract. At the close of the evidence the defendant moved that the plaintiff be required to elect upon which .issue he would go to the jury. The court denied the motion. This is assigned as error. It is true that' the two causes of action are inconsistent, because one treats the contract as an existing one and the other treats it as having been rescinded and nonexistent. This was urged upon the lower court as ground for a new trial, and the learned trial judge pointed out that the objection should have been raised by demurrer to the complaint and that it was waived by failure to demur. This disposition of the matter is sustained by the plain provisions of the statutes. See secs. 2649, 2654, Stats. Error is assigned by appellant because of failure to give instructions requested and the giving of instructions excepted to. We fail to find any error in such respect, and it seems unnecessary to treat such assignments in detail. We find no reversible error, from which it results that the judgment should be affirmed. By the Court. — Judgment affirmed.