Britton Milling Co. v. Williams

• Decision Date: 31 August 1921
• Docket Number: 4820
• Citation: 44 S.D. 464,184 N.W. 265
• Parties: BRITTON MILLING COMPANY, Plaintiff and appellant, v. H. J. WILLIAMS, Defendant and respondent.
• Court: South Dakota Supreme Court

44 S.D. 464

184 N.W. 265

BRITTON MILLING COMPANY, Plaintiff and appellant, v. H. J. WILLIAMS,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Brown County, SD

Hon. Frank Anderson, Judge

#4820--Reversed

Harold W. King, McNulty & Campbell

Attorneys for Appellant.

Campbell & Walton

Attorneys for Respondent.

Opinion filed August 31, 1921; Rehearing granted

POLLEY, P. J.

Action to recover on a promissory note. At the close of the testimony the court directed a verdict for the defendant, and from the judgment entered thereon and from an order denying a new trial plaintiff appeals.

The execution of the note by the defendant is admitted, but he claims that he was induced to sign the same by the false and fraudulent representations made by the party to whom he delivered the note, and that there was a lack of consideration for the same. The fraudulent representations claimed to have been made by the party who induced defendant to sign said note are alleged in defendant's answer in the following language:

"For further answer, by way of defense to the claim of the plaintiff herein, this defendant alleges that on or about the 2d day of November, 1917, one O. W. Bucklin visited this defendant, and requested and urged this defendant to subscribe for some shares of the capital stock of the Britton Co-operative Milling Company; the said O. W. Bucklin claiming to be the agent and representative of the Britton Co-operative Milling Company, a corporation, and in order to induce this defendant to subscribe for the capital stock in said milling company, falsely and fraudulently and for the purpose of deceiving and defrauding this defendant, made to the defendant, in substance, the following statements and promises, to wit: That the said Britton Co-operative Milling Company had bought and was about to take over the flouring mill located at Britton, S. D. That the said Britton Cooperative Milling Company had at said time arrangements entered into with the Great Northern Railway Company wherein and whereby a branch or spur railroad line would shortly be constructed by said railroad company from Burch, S. D., a distance of about four miles, and that upon completion of said branch railroad this defendant, if he became a stockholder in said Britton Co-operative Milling Company, and other stockholders residing on the line of the Great Northern Company near which this defendant resided, could and would be able to ship the grain raised by them directly over the Great Northern Railway to such mill at Britton, S. D., and that said Britton Co-operative Milling Company could, by reason of its being a manufacture, pay and would pay to stockholders therein a substantially higher price for grain, especially wheat, raised by them, than could be secured elsewhere.

"The said O. W. Bucklin further promised and represented to this defendant, as an inducement for him to buy stock in said Britton Co-operative Milling Company, that the said company would. 'promptly thereafter ship and send to the Farmers' Elevator Company at Plana, S. D., near which this defendant resided, flour, bran and feed for stock, and that said milling company would sell such feed to those subscribing for stock in the Britton Co-operative Milling Company at cost and for a substantially less sum than it could be purchased for elsewhere. And the said Bucklin, in order to induce this defendant to subscribe for the shares of capital stock of the said Britton Co-operative Milling Company, further offered and promised this defendant that, if he would subscribe for five shares of such stock of the par value of twenty-five dollars each and pay therefor one hundred and fifty dollars ($150), twenty-five dollars ($25) thereof to be then paid in cash and the remaining one hundred twenty-five dollars ($125) thereof to be represented by a note to the Britton Co-operative Milling Company, payable. January 1, 1919, bearing interest at the rate of 8 per cent. per annum, that such five shares of stock would be, by said Britton Co-operative Miling Company, issued to him at once, and that such stock certificates should and would bear and entitle the defendant to 8 per cent. annual interest, and that the interest accruing to this defendant by virtue of the stock certificates would pay all interest accruing on or to accrue upon the note above referred to, and that the dividends accruing on said stock would be sufficient to pay the principal of said note when the same became due, and further promised and agreed that the stock to be issued to him, this defendant, should be the capital stock of the Britton Co-operative Milling Company and that the twenty-five dollars ($25) cash would be paid to the Britton Co-operative Milling Company, and the note for one hundred twenty-five dollars ($125), which this defendant was asked to execute, would be the property and payable to the Britton Co-operative Milling Company.

"And the said O. W. Bucklin at said time, further promised and agreed with this defendant that, unless the sum of forty thousand dollars ($40,000) worth of the capital stock of said Britton Co-operative Milling Company was taken and subscribed on or before December I, 1917, his subscription for stock therein should be void. That, relying upon such statements, promises, and agreements so made by the said O. W. Bucklin, and believing them to be true, and not otherwise, this defendant, on said 2d day of November, 1917, paid to the said O. W. Bucklin the said sum of twenty-five dollars ('$25), and the said O. W. Bucklin prepared at said time a note for $125, which was agreed to be payable to the Britton Co-operative Milling Company, but which said defendant now ascertained was by said Bucklin wrongfully and fraudulently made payable to Britton Milling Company, this plaintiff, delivered the same to said Bucklin."

It is then alleged that all the promises and agreements made by...