Cook v. Gill

• Decision Date: 27 March 1896
• Citation: 34 A. 248,83 Md. 177
• Parties: COOK v. GILL.
• Court: Maryland Court of Appeals

34 A. 248

83 Md. 177

COOK

v. GILL.

Court of Appeals of Maryland.

March 27, 1896.

Appeal from Baltimore city court.

Action by Martin Gillett Gill against Grafflin Cook. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before McSHERRY, C J., and BRYAN. BRISCOE, PAGE, ROBERTS, RUSSUM, and BOYD, JJ.

T. M. Lanahan and Frank Gosnell, for appellant.

W. Pinkney Whyte, for appellee.

BOYD, J. The appellee sued the appellant to recover damages for alleged false, fraudulent, and deceitful representations made by the latter to him, which induced him to purchase 50 shares of stock of the Campbell Barrel Company, at $75 per share, whereby he was cheated and defrauded. The case was tried before the court, without a jury, and judgment was rendered in favor of the plaintiff. At the close of the plaintiff's testimony, the defendant offered a prayer that, "the plaintiff having offered no evidence legally sufficient to sustain the material averments of the declaration, the verdict should be for the defendant." It was rejected, and the defendant proceeded with his evidence. At the conclusion of the testimony, the plaintiff offered one prayer, which was granted, and the defendant twelve, the first, second, fourth, fifth, eighth, ninth, and twelfth of which were rejected as offered, but the fifth, eighth, and ninth were granted with some modifications.

The only questions before us are presented by two bills of exception, which contain the rulings of the court on those prayers. The first asked the court to say that "the plaintiff has offered no evidence legally sufficient to entitle him to recover under the pleadings in this case, and the verdict should be for the defendant. The second was similar to the one previously offered, and we will consider the two together. The appellant contends they should have been granted, because the plaintiff's proof failed to establish either the alleged false representations, or that he had relied altogether and exclusively on them, or that the stock was at the time of the purchase worth less than he had paid for it The plaintiff testified that in February, 1893, desiring to purchase some stock in the Crown Cork & Seal Company, he called on a Mr. Morton for that purpose, who directed him to the defendant. He inquired of the latter if he knew of any of that stock for sale. He said he did not, and asked him why he did not buy some of the barrel company stock, to which the plaintiff replied he did not want that. Afterwards Mr. Cook called on him, urged him to buy some of the barrel company stock and said, "I will try to buy it for you as low as I can." He called on him several times at his place of business, trying to induce him to buy that stock, and afterwards called at his house, and, to use the language of the witness, "insisted on me buying some of this barrel-machine company's stock; that it was a dead sure thing, and that he would let me in on the ground floor; that there was a gentleman who had some of that stock who had a mortgage on his house, and he could buy it from him for $80 a share. I told him I didn't want it The third time he came to the house, I said: 'I will give you $70 for that, if it is so good.'" He also testified that Mr. Cook said $80 was the price everybody paid for it, and he would see if he could buy it for $70, but that he did not think he could; that Mr. Cook told him he would not sell his stock at any price. Afterwards the defendant said he could not buy it at $70, and that he (plaintiff) had better take it at $80. Finally he told him: "All right; tell him I will give him $75 for it." He said: "I will go and see him." The next evening Cook said: "I have that stock for you, 50 shares, for $3,750." He further testified that he gave Cook his check for the amount, upon the statement made by him that the man required that sum for his stock; that he never heard of the stock until Cook spoke of it; that he had great confidence in Cook, and he had no knowledge of the value of the stock himself, except what he got from Cook, who was secretary of the barrel company and induced him to pay $75 a share for it. He admitted that he had, at Cook's request, looked at the machine, and, after his inspection of it, said: "I told him that, if what Mr. Cook told me was true, it might be a good investment,—I did not know, —provided I was on the ground floor." His evidence tended to show that he bought the stock, and paid $75 a share for it, because the defendant, in whom he trusted, represented it as worth $80, and that he could procure it by reason of the fact that the owner had a mortgage on his house, and needed the money to pay it off; while the fact was the defendant already owned and held 25 of the 50 shares of stock sold the plaintiff, for which he had paid Mr. Hoopes $30 per share, and had an option on 25 more shares at $50 per share, which he got, and delivered the 50 shares to the plaintiff. Just what he paid for the 25 shares on which he had the option is not clearly shown. Mr. Cook said he got "a slight reduction" from the price named in the option, but did not remember just what he did pay for it, although Mr. Hoopes testified it was $50 per share. The defendant did not procure the stock from a third person, to enable the latter to take up a mortgage on his house; but it belonged to the defendant himself, and he made a profit of $45 per share on 25 shares, and $25 or more per share on the balance. It is true that some shares had been sold as high as $80, but that was not the price everybody paid for it, as the defendant knew from his dealings with Hoopes; and, in point of fact, he held 160 shares, which he had received in "promoting the company." Mr. Campbell testified that the defendant, in February, 1893, came into the office of the company, and said, "That is the way to do,' or something to that effect. He said, T have just made a couple of thousand dollars, and I will call the day off, and go home.' * * * I said, 'What was it?' And he said he had got stock from Mr. Hoopes for thirty dollars, and sold it for seventy or seventy-five dollars, and thought that was doing pretty well, and thought he would shut up and go home. I said, 'Who did you sell it to?' And he said, 'Mr. Gill;' and that Mr. Hoopes had some other stock that he would probably get hold of yet." The testimony of the plaintiff, which we must assume to be true in considering these prayers, is thus to the effect that the defendant did knowingly make false representations to the plaintiff, with the intent to induce him to buy the stock, and did thereby make the sale, which would not have been consummated but for the false representation.

As to whether or not the stock was at the time of sale worth less than he paid for it, the plaintiff testified, in answer to the question, "Did you try to dispose of the stock?" "Of course, 1 was trying to sell it all the time, but I couldn't sell it at any price. A few months after that I would have been glad to have taken twenty-five dollars a share for it." Some time afterwards, Mr. Rosen that sold his stock to the plaintiff, the defend ant, and others at $17 per share. But, at the very time the sale was made by the defend ant to the plaintiff, the former bought of Hoopes 25 shares at "a slight reduction" from $50 per share, and had previous] bought the other 25 shares at $30. Hoopes; was superintendent and manager, and the defendant was secretary, of the company,...