Farmers' Co-operative Packing Co. v. Boyd

The following opinion was filed November 15, 1921: Vinje, J. The foregoing statement of facts is an outline statement only and does not purport to embody detailed facts. It does, however, contain the main facts around which the evidentiary facts cluster. The complaint alleged a fraudulent conspiracy and the proof properly took a wide range, perhaps in a number of instances on behalf of plaintiff wider^ than the rules of evidence permit even in such cases. It is therefore not practical in a judicial opinion to set forth the detailed evidence, especially in a case such as this, where the controlling questions passed upon by the court below are — 556 — questions of fact whose correct solution is of little value to the legal profession. But it does not follow from this that all the evidence has not received careful consideration. The importance of the case, in view of the amount involved and the stigma cast by the verdict upon the reputations of prominent business men and farmers of the state, has served to emphasize judicial duty, though it is hoped such added emphasis is not necessary in any case. In addition to the importance of the case, the very exhaustive and earnest briefs and oral arguments of counsel on both sides not only incited but materially assisted judicial inquiry. A careful study of the case has been made by each member of the court with the result that it is its best judgment that no cause of action exists in favor of plaintiff against the appealing defendants or against any of them. It is the settled law of both England and America that a buyer is required to notice such qualities of the goods purchased as are reasonably within his observation, and this is especially true as to value, which is largely a matter of judgment, and hence though value be puffed by the vendor such puffing does not render him legally liable where the purchaser has an opportunity to examine the subject of the sale. 2 Kent, Comm. (14th ed.) 478; Story, Sales (3d ed.) § 348; 1 Bouv. Law Diet. 438. It will be noticed that the special verdict did not submit to the jury the issue as to whether or not plaintiff in fact relied upon the representations made by the defendants or whether it was justified in relying upon them, though such issue was tendered by the pleadings and was requested by the defendants to be submitted to the jury. Where the trial court’s attention is properly called to an issue and it is not submitted to the jury it can make no finding thereon either by virtue of sec. 2858m, Stats., or otherwise, and the judgment rendered cannot be sustained by the presumption that findings supporting the judgment were made. Habhegger v. King, 149 Wis. 1, 135 N. W. 166; Murray v. Paine L. Co. — 557 — 155 Wis. 409, 144 N. W. 982. Such assumed findings can support the judgment only in cases where the attention of the trial court has not been called to the issue. Sec. 2858m, Stats. In cases where the evidence as to the issue thus omitted is conflicting or susceptible of different conclusions, the case will be reversed and remanded with directions to submit such issue to the jury. But where the facts are undisputed, or it is clear that only one proper conclusion thereon can be reached by reasonable men, this court will determine such issue and dispose of the case accordingly. It is our conclusion that the question whether the plaintiff had a right to rely upon the representations made by the defendants as to the value of the plant must be answered in the negative upon practically undisputed testimony. It appears that at the directors’ meeting of May 4, 1914, one of the directors, Mr. Brown, expressed the view that the price asked was too high and that an appraisal be had. Mr. Boyd consented to a new appraisal provided the price fixed by the appraisers should be the purchase price. The directors did not desire an appraisal but voted unanimously to accept Boyd’s written proposition. At the June meeting when the plant was finally bought, the question of price became a subject of such heated debate that one of the directors, Mr. BossKard, resigned and left the meeting. The same offer as to an appraisal was again made by Boyd but rejected. The directors had before them the appraisals mentioned in the statement of facts; they had the report of a number of committees who had previously examined the plant, but above all they had the plant before them; that is, it was near by, open to their inspection, and a number of them had inspected it. Under such, circumstances they had no right to rely upon the written offer as to value. It is claimed, but not proven, that the book value given in Exhibit 10 was too great. Concede that it was. The plant was there, had been inspected, and no claim is made that Boyd — 558 — did not invite inspection or that he sought to conceal or misrepresent the condition of any corporate part of the plant. His view that it would prove profitable in the hands of plaintiff was the expression of a mere opinion as to' future success and could not form the basis óf a misrepresentation. The law is well settled that where the question of value becomes a subject of discussion between buyer and seller, the duty to investigate follows where an investigation can conveniently be had. In O’Day v. Meyers, 147 Wis. 549, 554, 133 N. W. 605, the rule is thus stated: “It is elementary that mere representations as to value, where the purchaser is presumed competent to judge thereof and has full opportunity to, and does,' examine the property to be purchased, do not .constitute false representations entitling the purchaser to rescind on that ground, even though relied upon by him. Such representations as to value constitute nothing more than the mere opinion of the seller,” citing a large number of Wisconsin cases. See, also, J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231; Morgan v. Hodge, 145 Wis. 143, 129 N. W. 1083; Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790; Karls v. Drake, 168 Wis. 372, 170 N. W. 248; Swoboda v. Rubin, 169 Wis. 162, 170 N. W. 955. In 12 Ruling Case Law, p. 361, the rule, is expressed as follows; “Where a party to whom representations are made is put upon inquiry by his knowledge of the facts and undertakes to make an investigation of his own, and the other party does nothing to prevent this investigation from being as full as the investigator chooses to make it, the investigator will not usually be heard to say that he had the right to rely on such representations.” Here the plaintiff had convenient opportunity for. full examination as to condition and value of the plant. It is only where there is no opportunity for adequate examination that the purchaser may rely upon representations made. Ohrmundt v. Spiegelhoff, ante, p. 214, 184 N. W. 692. Thus, — 559 — much that plaintiff contends for may be true and yet legal liability on the part of the appealing defendants may not follow if it is shown that plaintiff, before making the! purchase, had its attention called tO' the high price and had an opportunity to ascertain the truth with respect thereto but refused or neglected to do so. In such event it must abide the consequences of its voluntary act even though it be a corporation and even though its directors may have been quite ignorant of the value of'packing plants. If they were ignorant it was their duty to inform themselves. Plaintiff was engaged in the business of buying such a plant and was chargeable with the duty to exercise the ordinary and reasonable diligence of a buyer. Ohrmundt v. Spiegelhoff, ante, p. 214, 184 N. W. 692. It thus appears that plaintiff had no right to rely upon any representations made by the defendants and that therefore it has no cause of action against them. The opinion might well end here, for the legal ground upon which the decision of this court is based is as stated. But in view of the gravity of the charges made by plaintiff against the defendants we deem it proper to state that we are also of the view that no conspiracy was shown in which. any oj the answering defendants participated. In coming to such conclusion the court has not been unmindful of the weight that should be given to the verdict — especially when approved by the trial court. Nor has it ignored the fact that fraud and conspiracy is usually proved by circumstántial evidence and that it may be satisfactorily shown by a combination of circumstances none of which alone has much probative force. Our conclusion has been reached not so much because of the weakness of disputed evidentiary facts which, but for other undisputed evidence, the jury might well resolve in favor of the plaintiff, but because of the positive evidence that the organization of .the plaintiff was instituted by the farmers themselves for the purpose of building or purchasing a co-operative packing plant, notwith — 560 — standing the fact that in the early proceedings the purchase of the Packing Company became the probable objective <5f the organization. Such conclusion is further strengthened by the fact that plaintiff operated the plant for two years and a half and then waited another two years before beginning action. Long before it ceased to operate the plant it knew its condition at the time of purchase, yet it made no claim that it had paid too much. Boyd ceased to be connected with the plaintiff's plant in 1915, and from then on it cannot be argued that plaintiff was still in the clutch of the alleged conspiracy. That plaintiff failed to make the plant a profitable one may be due to many causes. Its loss of $60,000 worth of meat in one year, due to inadequate refrigeration, may spell poor management. Its lack of success, together with that of many other co-operative ventures, which is a matter of common knowledge, may indicate that man is not yet altruistic enough to make them financially successful. But the success or failure of plaintiff’s plant has only an indirect bearing on the question whether plaintiff was induced by actionable fraud or conspiracy to1 pay too much for it. If it was, it is entitled to its lawful damages. If it was not, it is immaterial whether it was a success or failure. The substance of the claim of plaintiff is this: The defendants^ for the purpose of securing a grossly excessive price for the Packing Company plant whereby the owners and the creditors would be fully reimbursed for their investment, conceived the scheme of forming a co-operative corporation under the laws of Wisconsin and selling the plant to them for such grossly excessive price. As evidence of such scheme the activities of Boyd, Chryst, Carnahan, Ma-honey, and of the appellant defendants in the creation of the plaintiff corporation is relied upon. That Boyd, Chryst, Car-nahan, and Mahoney were active in the formation of the plaintiff corporation is well established. But of these Chryst is the only appellant. Mahoney and Carnahan as well as — 561 — many other members and officers of the American Society of Equity or. of the Wisconsin Union thereof, who were also very active, were not even made defendants. The strongest evidence to show connection with the alleged conspiracy on the part of the bank officers is claimed to be the fact that they took stock in the plaintiff corporation in their own names when the bank was the real owner thereof; that they sold it before plaintiff became insolvent; and that they permitted a publication -of their names in the La Crosse papers as subscribers of stock; also the fact that Burton expressed the opinion that the purchase price was a stiff one and that he thought Boyd had better sell for $60,000 .if he could get no more, and that Boyd paid for the five shares of stock subscribed by Chryst, and the fact that the first $85,000 paid on the purchase price was paid into the bank to liquidate its indebtedness and that of preferred stockholders in the Packing Company. As further proof of a conspiracy it is shown that the subscription blank used early in the formation of the plaintiff spoke of the purchase of the Packing Company plant, that Chryst spoke of such purpose in a letter during the early organization proceedings. These are the main claims made showing fraud. Many others are claimed to exist, and the argument made on behalf of plaintiff is strong and persuasive, but we deem the conclusion it seeks to reach is not sustained by the evidence. The testimony as to the value of the Packing Company took a wide range. By some witnesses it was placed less than the value found by the jury and by some as high as the price paid. It must therefore be aásumed as a verity that the value found by the jury has support in the evidence and cannot be disturbed. But the very fact that there was such great difference in opinion as to value by presumably competent and disinterested witnesses has a very direct bearing upon the question of fraud, for where competent honest men may differ, fraud cannot be so unerringly inferred from a purchase made within the limits of the testimony. The apprais — 562 — als made by the men referred to in the statement of facts, and which were adopted by plaintiff as a basis for the price, showed the plant to be worth substantially what was paid for it. But as before stated, the basis of our decision lies in the fact that plaintiff through committees of its own had several times inspected the plant for the purpose of ascertaining its value before the second directors’ meeting when the purchase was finally decided upon; that at such meeting the value of the plant became a subject of sharp controversy; that the plant was close at hand and open to inspection before purchase; that.the directors, notwithstanding the fact they had their attention called to the price, the adverse interest of Boyd and Johnson, nevertheless were satisfied to go on and complete the purchase relying upon inspections already made by its committees and upon appraisals before them. Under such circumstances, in the absence of any false representations made by the defendants — and there are none except perhaps as to the book value of the plant, — plaintiff must be held to have acted upon its own judgment, and if it erred it must bear the consequences. It will not do to say that plaintiff’s directors were ignorant as to the value of packing plants. They had it within their power, and it was their duty to the stockholders, to inform themselves before making a purchase. They had informed themselves and they made further investigations that day by waiting for the appraisals mentioned before acting. Boyd’s offer to- have a new appraisal to determine the price was twice repeated. The fact that he asked a high price for the plant, in the absence of false representations, and with-full opportunity to inspect, does not constitute fraud. Neither is a creditor guilty of fraud because he knows his debtor is endeavoring to sell his property at a high price where the creditor makes no representations of his own in regard to the matter. But it is claimed by plaintiff that the fact that the directors of the bank subscribed for stock in the plaintiff com — 563 — pany shows a participation in the fraud, and especially the fact that they disposéd of their sto'ck at an early day. • Courts should deal with practical matters in a practical way. La Crosse was a city of about 30,000 people. A large co-operative farmers’ packing plant was to be established. A drive was made for that purpose, meetings were held. Newspapers were full of the enterprise. The defendants referred to, Burton, Hixon, Funke, Gund, and Michel, were old and prominent business men of the city, which depended for its prosperity largely upon the farmers. Let one of the witnesses, not a defendant, tell why subscriptions were made by the business men of La Crosse. Mr. Doerflinger, president of the board of trade, testified as follows: “I subscribed for $1,000 stock in that enterprise because I was solicited. Naturally, I thought it a good thing; and as president of the board of trade and as a merchant here, we are always looking for things that are going .to help the town. I did believe it was going to benefit the city, because when Mr. Chryst was here he gave us very good explanations; told us the places where they made big successes, the organizations of that kind. I did think and believe today that if it had been well managed it would have been a good thing for the city of La Crosse; we thought that if this was well managed it would prove a big thing for La Crosse. Mr. Brayton solicited my subscription. Mr. Brayton was editor of the Tribune. This is how he solicited my subscription: The thing didn’t take a start very easy, so Mr. Brayton called me up. He says: ‘Mr. Doerflinger, you will have to get on this list and start the thing moving.’ He says, ‘You are president of the board of trade, and of course the first thing people ask, “What is Doerflinger doing; he is hollering his head off about this thing, now what is he doing?” ’ Well of course, I put myself down for a thousand dollars.” Who can doubt the truth of Mr. Doerflinger’s statements ? The defendants gave substantially the same reasons for their subscriptions, namely, that they thought it would be a good thing for the town; that they were expected to subscribe and did so. Later they sold their stock, but that was — 564 — when it was selling for more than par and Hall had sold more stock than he could deliver and came tp Burton to help him out with his stock. Plaintiff’s executive committee on May 4, 1914, voted that after the sale of the first $100,000 the next $50,000 should be sold at $105, and the next $50,000 at $110, and the next $50,000 at $115. The stock sold for above par the next fall, and some of the defendants resold their stock, Burton for the reason stated. No badge of fraud or conspiracy is perceived either in the subscription or resale of stock.. Of course later, after the stock became worthless' — a contingency not probable at the time of sale,— it can easily by argument be made to assume a sinister aspect. But conduct should be judged by the circumstances as they appear at the time and not by subsequent events. As before stated, Clvryst was president of the American Society of Equity, Carnahan was president of the Wisconsin Union and chairman of the packing-plant committee of both organizations. D. O. Mahoney was county judge of Vernon county and for six or seven years president of the Wisconsin Union of the American Society of Equity. All these men were eager for a co-operative packing plant and worked zealously for it' without remuneration, except that Clvryst received a few shares of stock from Boyd, who wanted to reimburse-him in part for his time and services. That such men should betray their trust to the organization that had honored them with the highest offices at their command is not very credible; that they should do it without any substantial compensation is highly incredible. It may have been a case where their zeal outran their judgment. Tha!t often happens to the best of men. Certain it is that during the period mentioned there was great activity among the farmers in the formation of their co-operative enterprises. That the officers of the bank should have joined in a conspiracy to defraud the farming community upon whose prosperity their bank ultimately depended does not seem plausible unless a very strong motive is shown. The motive claimed is that in that way the bank could secure the pay — 565 — ment of the indebtedness of $55,000 which the Packing Company owed the bank. The force of this motive becomes less apparent when it is remembered that the value put upon the plant by the jury plus the other assets of the company was ample to take care of this indebtedness and practically of the whole indebtedness of the plant. There is no proof that Isabella, Boyd said or did anything to aid the alleged conspiracy except to subscribe for. some stock in the plaintiff company. She was Boyd’s sister, and had been his bookkeeper. The chief argument to show her guilt is based upon the fact that she did not testify at the trial though present.' Her failure so to do is not of itself a sufficient basis for finding her guilty. Verdicts should rest upon more substantial grounds. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint upon the merits. Owen and Jones, JJ., dissent. A motion for a rehearing was denied, with $25 costs, on January 10, 1922.