Chrystal v. Level

Mr. Justice Brown delivered the opinion of the court. The judgment in this case must be reversed and the cause remanded for a new trial. We do not think it necessary to decide in this appeal the point, vigorously insisted on by the defendant, that the amendment made undér the order of May 4, 1907, in the form of the action by the substituted declaration then filed was not in the power of the court to allow, because of a prior election by the plaintiff between affirming and rescinding the original contract for the purchase of stock in the Chicago Stock Yards and Transit Company. It seems to us a tenable theory that the evidence might show on a fair trial of this cause under the last amended declaration, that the election, if one was necessary, between affirmance and disaffirmance was made in favor of the latter by the plaintiff before he brought any suit at all. If that were so, then the argument of the defendant that the election, once made, could not be revoked, would be inconsistent with the theory that the mistaken pleading first filed fixed rights which could not be affected even by the dismissal of the one suit and the beginning of another. And we are not prepared to hold that if such an election were shown by the evidence to have taken place before the suit was begun, it would not be, under the liberal spirit of our amendment laws, an amendment in furtherance of justice, and one “enabling the plaintiff to sustain the action for the claim for which it was intended to be brought,” to change the pleading to the extent it was done in this case. But we are clear that the defendant did not have a fair trial of the issues raised by the amended declaration. He could not have had it with the change of the form of action and the consequent entire change of the measure of damages, without an opportunity, which was here absolutely denied him, of repleading and of retrying his case. f The measure of damages in the action for fraud and deceit was undoubtedly the difference in value between the stock purchased and its hypothetical value had the company owned the twenty-five acres of land which, as it was alleged, it was falsely represented to ownJ If no evidence or insufficient evidence of either of these values was offered for the plaintiff, the defendant had a right to rely on that fact in trying the issues and to rely on it not only before the jury but before this court on an appeal. On the other hand, the measure of damages in the case stated by the amended declaration, which was for the recovery of the consideration paid on a rescinded contract, was the value of the bonds which the plaintiff exchanged for the stock. It was the right of the defendant on this case to show the value or the want of such value in these bonds, which would have been immaterial in the original case. These considerations, it seems to us, prevented its being within the discretion of the learned trial judge to allow the amendment at the stage of the proceedings at which it was allowed, without granting a new.trial. While this is sufficient to dispose of the case, we deem it proper to say that we should not have been satisfied with the verdict or judgment on the record as it stands, even had the amended declaration been on file when the case was tried before the jury. The case made by the plaintiff is a peculiar one. Although for many years he had been engaged either as a principal or employe in the brokerage business, dealing in stocks and bonds, although he was one of the original subscribers to the capital stock of the new enterprise known as the Chicago Stock Yards & Transit Company, and although he was one of the directors of the corporation and was present at its meetings, he says that he was content to take, as sufficient reasons for turning over his bonds for certain stock in the company, the statements of the defendant—first, that the company owned twenty-five acres of land; second, that that land was “from 52nd avenue to 48th avenue and from 39th street to the Drainage Canal” (which tract, we can take judicial notice, is half a mile long, and while of varying widths at least in such width more than a sixth of a mile on the average, and certainly nearer sixty than twenty-five acres, as plaintiff could easily have seen on any map)'; third, that the twenty-five acres so situated—seven or eight miles southwest from the Court House—on which he saw “a few pens” and “a man cutting grass,” were worth $200,000, or $8,000 an acre, although on record was a deed, of which he produced a copy in evidence, dated four months before the transaction in question, from the Ogden Estate to the defendant, of five acres of it for $5,000. All this may be true, and the trial judge’s somewhat doubtful supposition that the plaintiff might get the jury to believe it seems to have been realized; but we think at least on such a basis the other evidence necassary to establish the damages claimed by the plaintiff should have been clear. We do not think it was so. We can find no sufficient evidence in the record of the value -of the stock or of the bonds which were exchanged for it. As we have said, the value of one or the other was an essential factor in the measure of damages whether the contract were considered affirmed or rescinded. The par value of the bonds is indeed in evidence and an implication that the defendant said he would take them at their face in consideration of the stock being treated as worth fifty cents on the dollar, but this is not sufficient as proof of the cash value of either bonds or stock on either theory. The transaction was an exchange at nominal prices. Nor do we find sufficient, evidence that the company does not own the land that the defendant is alleged to have said it did. Deeds on record showing that ten acres had been conveyed to it, and the absence of any other deeds to it from record may furnish ground for such a supposition, but are hardly evidence sufficient to found this verdict on. Record is not an essential element in ownership. This cause should be retried, and the judgment is reversed and it is remanded to the Superior Court for that purpose. Reversed and remanded.