Ballantine v. Cummings

• Decision Date: 20 April 1908
• Docket Number: 31
• Citation: 70 A. 546,220 Pa. 621
• Parties: Ballantine, Appellant, v. Cummings
• Court: Pennsylvania Supreme Court

70 A. 546

220 Pa. 621

Ballantine, Appellant, v. Cummings

No. 31

Supreme Court of Pennsylvania

April 20, 1908

Argued April 2, 1908 [Copyrighted Material Omitted]

Appeal, No. 31, Jan. T., 1908, by plaintiff, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1900, No. 130, on verdict for defendants in case of Charles M. Ballantine v. George K Cummings et al. Affirmed.

Trespass for conspiracy. Before MAGILL, J.

At the trial when plaintiff was on the stand he was asked this question:

Mr. Bracken: "Q. Had you any knowledge, prior to your purchase in March, 1899, of the listing of the common stock of the company upon the Philadelphia Stock Exchange?"

Mr. Graham: The only stock involved here is preferred stock. I object to any evidence of the listing of the common stock. It is not in issue, and the preferred stock was not a listed stock at the time of the purchase of this stock, nor for six months afterwards.

The Court: I will sustain the objection at this stage of the case. Exception. [1]

J. Bell Austin was examined as follows:

"Q. What is your business? A. Secretary and treasurer of the Philadelphia Stock Exchange. Q. Did you hold that position in January, 1899? A. Yes, sir. Q. What is the Philadelphia Stock Exchange? A. A place where stocks and bonds are bought and sold. Q. I mean in respect to its membership. It is an organization, isn't it, of brokers for the sale and purchase of stocks and bonds? A. Yes, sir. Q. Have you with you any papers that were filed with the Philadelphia Stock Exchange by the Daylight Prism Company? A. I think so, yes. Q. Will you please produce them. (Witness produces papers.) Q. One of the papers you produced is entitled at the head, Philadelphia Stock Exchange, stock application for the listing of stock dated August 1, 1899? A. Yes, sir. Q. Have you an application of an earlier date? A. That is preferred stock, isn't it?"

Mr. Graham: Yes.

"A. Yes, that is for the common stock. Q. You also produce an application dated January 13, 1899, for the listing of the common stock? A. The common stock? Q. On the Philadelphia Stock Exchange. Was that delivered to you on or about that date?"

Mr. Graham: I object to all inquiries relating to the listing and sale of common stock.

The Court: I cannot view this offer of the listing of this common stock as material to this issue. I sustain Mr. Graham's objection. Exception. [2]

Mr. Bracken: I offer to prove from the record made by the witness of the daily sales in the Stock Exchange of common stock made during the period from the listing, January, 1899, down to the date of purchase of the plaintiff's stock, to be followed by evidence that those sales correspond with sales made by brokers for G. K. and J. E. Cummings, the defendants, one to the other.

Objected to as irrelevant and immaterial, and not pertinent to the issue.

Objection sustained. Exception. [3]

Patrick Henry was examined as follows:

Mr. Bracken: "Q. Are the books you have produced here kept under your supervision? A. Yes, sir. Q. And have you several bookkeepers who make the entries from time to time? A. Yes, sir. Q. Have you an account in one of these books with either J. E. or G. K. Cummings?"

Objected to.

The Court: As to the entries in these books which the witness produces, he is not competent to testify, but the real question I suppose is that which will follow, namely, were there transactions between DeHaven and Townsend as brokers, and G. K. Cummings and J. E. Cummings in common stock of this company during a certain period; is that right?

Mr. Bracken: That is undoubtedly what I propose to do, to prove just what the dealings were in common stock during the period in question on the part of one or the other of the defendants through DeHaven and Townsend as their broker or as his broker.

The Court: Then any technical question to the books themselves is not pressed at this time.

Mr. Graham: I feel that it is impossible for this witness to prove anything of that nature. In the first place your honor would not admit evidence of dealings coming from books of other people as against us, against the defendants in this case, and if he wants to prove transactions he would have to go and prove the identity of the man and the transaction, too, before it would be admissible in evidence here, but I will not press the technical objection, which I am sure is one that could not be surmounted, but meet the evidence on its merits, the question of whether this is admissible testimony, even if he had established proof of these sales.

Mr. Bracken: I don't know any better proof under the law than entries made in books of brokers, made in the due course of business, where you prove the entries. Probably you must call the people who made the entries, but having done that the books are competent evidence in any controversy of this sort. They are not evidence in favor of the person who made the entries as against the defendant, but in a controversy as between third persons, books made up in due course of business and properly proved and authenticated have always been held to be good evidence of the facts that they show.

The Court: The objection to the offer of the sales of common stock during this period with which the defendants had to do is sustained. Exception. [4]

Hugo H. Ditman was examined as follows:

Mr. Bracken: I offer to prove by this witness, who was the bookkeeper and connected with Gillman and Finninger, brokers on the Stock Exchange in 1899, that between the dates of the listing of the common stock of the Daylight Prism Company and the date of the purchase of the preferred stock by the plaintiff, Gillman and Finninger both bought and sold large amounts of common stock on behalf of Mr. George K. Cummings and Mr. J. E. Cummings, and that sales were made on certain dates by one to the other.

Objected to on the ground formerly stated.

Objection sustained. Exception. [5]

J. E. Cummings, called for cross-examination, was asked this question:

Mr. Bracken: "Q. Will you state whether or not, prior to March 19, 1899, after the date of the organization of the company, you made any sales or purchases of the common stock of the Daylight Prism Company of America?"

Objected to.

Objection sustained. Exception. [6]

Joseph H. Straub was examined as follows:

Mr. Bracken: I offer to prove by the witness that, as a stock broker, his firm represented G. K. and J. E. Cummings, during the period from the listing of the stock and prior to April 20, 1899, and that during that period he purchased and sold common stock of the Daylight Prism Company on behalf of both of the defendants, and that the sales thus made were duly advertised in the sales made from day to day on the Philadelphia Stock Exchange, and that it will be followed by proof that these advertisements came to the notice of the plaintiff.

Mr. Graham: "Q. Had G. K. Cummings any account with your firm? A. I don't know that he had; I never traded for him; the only account I had was with Mr. J. E. Cummings. I did not keep the books; I only executed the orders on the Exchange, and I only knew Mr. Cummings there (indicating); I did not know the other brother in a business way; I never got an order from him, I don't know that we did. I did not know him in any business transaction."

Mr. Graham: The offer is objected to.

Objection sustained for the reasons stated in answer to former objections to the same offer as to other witnesses. Exception. [7]

C. E. Schmidt, a witness called on behalf of the plaintiff, was asked this question:

"Q. Will you state whether or not, in January of 1899, you had any conversation with either G. K. or J. E. Cummings with reference to the purchase or sale of common stock on the Philadelphia Stock Exchange?"

Mr. Graham: You may answer, yes or no. "A. Yes."

Mr. Bracken: "Q. With which one had you any conversation? A. G. K. Cummings. Q. State what the conversation was."

Objected to.

The Court: "Q. This is with relation to common stock? A. Common stock."

Objection sustained. Exception to plaintiff. [8]

The court charged in part as follows:

The allegation of the plaintiff is that the defendants, while officers, directors and stockholders of the Daylight Prism Company of Pennsylvania, a corporation under the laws of West Virginia, fraudulently and maliciously conspired together to cheat and defraud the public, by inducing members thereof to purchase stock of the company:

1. By making and publishing false statements that dividends had been declared out of earnings of the corporation, when, in fact, no dividends had been earned, and by paying out of the capital stock, sums of money purporting to be dividends declared out of profits.

2. By making, through various brokers, fictitious sales and purchases to and from one another of the stock of the corporation, for the purpose of creating a fictitious market value for the stock, so as to deceive the public into the belief that the stock had a value which, in fact, it did not possess.

3. By falsely and fraudulently representing to the public that the preferred stock had been so issued, that upon dissolution of the corporation, the preferred stock would participate in the distribution of assets in priority to the common stock, -- that is to say, that the preferred stock was entitled to preference in payment of principal as well as dividend out of the assets of the corporation, before the common stock would be entitled to participate at all in the assets.

The plaintiff avers that these alleged false statements were brought to his knowledge and that he believed them to be true. And that in this belief, he purchased on March 23 1899, 100 shares of preferred stock of the company at $65.00 per share, and on April 20, 1899...