Franklin v. Holle

• Decision Date: 27 May 1879
• Citation: 7 Mo.App. 241
• Parties: EDWARD C. FRANKLIN, Appellant, v. JOSEPH A. HOLLE, Respondent.
• Court: Missouri Court of Appeals

7 Mo.App. 241

EDWARD C. FRANKLIN, Appellant,

v.JOSEPH A. HOLLE, Respondent.

St. Louis Court of Appeals, Missouri.

May 27, 1879.

1. To support an action for deceit, the false representations must have been made as to material facts within the knowledge of the defendant, must have been of a character to deceive a man of ordinary prudence, must have been relied upon, and must have been intentional.

2. The refusal of the trial court to grant a new trial on the ground of newly discovered evidence is not ground for a reversal, unless it clearly appears that the court abused its discretion in the matter.

3. A new trial will not be granted on the ground of newly discovered evidence where, with diligence, the new testimony might have been discovered before the trial.

APPEAL from St. Louis Circuit Court.

Affirmed.

MARSHALL & BARCLAY, for appellant: The court erred in overruling the appellant's motion for a new trial.-- Jaccard v. Davis, 43 Mo. 635; Phillips v. Phillips, 46 Mo. 607. On the general propositions in this case, and the liability of defendant, we refer to the following authorities. To show that there was a duty cast upon defendant to know the truth of this matter by his official relation to the subject-matter, see Wannall v. Keim, 57 Mo. 402. On question of requisites to a recovery.-- Dulaney v. Rogers, 64 Mo. 201; Lefever v. Lefever, 30 N. Y. 27; Von Bruck v. Peyser, 2 Robt. 468; s. c. 28 How. Pr. 292; Hubbard v. Briggs, 31 N. Y. 518. See specially Hubbell v. Meigs, 50 N. Y. 480. For publishing false statements of condition of bank.-- Newberry v. Garland, 31 Barb. 121; Morse v. Smits, 19 How. Pr. 275. The false representation may consist in the suppression of the truth as well as in the assertion of a falsehood.-- Gough v. Dennis, Lalor, 55; Viele v. Gass, 49 Barb. 96; s. c. 51 N. Y. 624; Von Bruck v. Peyser, 28 How. Pr. 292; Buford v. Caldwell, 3 Mo. 477; City Bank, etc. v. Phillips, 22 Mo. 85; Griffith v. Eby, 12 Mo. 517.

HITCHCOCK, LUBKE & PLAYER, for respondent: The facts in this case did not warrant a recovery in an action for deceit.--Wag. Stats. 657, sect. 7; McKinney v. Whiting, 8 Allen, 208; Wells v. Prince, 15 Gray, 562; Mann v. Blanchard, 2 Allen, 486; Kimball v. Comstock, 14 Gray, 508; Bank v. Sells, 3 Mo. App. 85; Dunn v. White, 63 Mo. 181. Appellant's motion for a new trial, on the ground of newly discovered evidence, was properly overruled. The affidavits failed to show any diligence; want of diligence before the trial is fatal.-- Richardson v. Farmer, 36 Mo. 35; Callahan v. Caffarata, 39 Mo. 136; Tilford v. Ramsey, 43 Mo. 410; Graves v. Pegram, 2 Mo. App. 598. The granting of motions on this ground is discretionary with the trial court.-- Insurance Co. v. Curran, 45 Mo. 142.

BAKEWELL, J., delivered the opinion of the court.

This is an action in the nature of an action for deceit. The petition alleges that the defendant, who was then cashier of the West St. Louis Savings Bank, falsely represented to the appellant that the bank was solvent and prosperous; that its stock was very valuable and a good investment; and thereby induced the appellant to buy ten shares of its stock, though the defendant at the time knew that the stock was worthless; to the damage of the plaintiff $1,000. The answer is a general denial; and further, that the representations were not made in writing. There was a verdict and judgment for the defendant.

Of the instructions, with one exception noted in the course of the opinion, the plaintiff has no reason to complain. In structions asked by the appellant seem to have been refused; but they are not set out in the record, and no point is made upon their refusal.

We have examined the evidence, and the sum of it seems to be that, ten days before the purchase of the stock by the plaintiff, a statement of the officers of the bank, sworn to by the defendant, was published. The plaintiff did not rely upon this statement in purchasing stock; nor does it appear to have been false in any particular statement as to which the defendant, by his duties as cashier, was required to have any knowledge. The defendant gave the plaintiff his opinion about the condition of the bank and the value of its stock, and stated certain facts as to dividends paid in the past. These statements were made at the request of the plaintiff, who was making the inquiries with a view to the purchase of stock. So far as they profess to give the opinion of the defendant, the testimony is that these statements represented his honest opinion at the time; and there is nothing to contradict his testimony in this respect. So far as the statements represent facts within his knowledge, there is no evidence that they were not true. The defendant swears that he believed the statements made by him to the plaintiff to have been true when made, and that when giving his testimony he still believed them to be true. The plaintiff, without difficulty, sold half of the stock purchased by him for the amount he paid for it. This sale was made shortly after the representations of the defendant. The evidence is that when he bought the stock it was worth in the market what he paid for it. The bank failed about a year after the plaintiff bought the stock. At that time the plaintiff was overdrawn about $200 in the bank in question, which amount the defendant as cashier had to make up. The bank also held the plaintiff's note for $600, with the defendant as accommodation indorser, which note the defendant at last had to pay. When the defendant had advanced these sums for the plaintiff, he had an interview with the plaintiff, in which the plaintiff, as a set-off to these claims, alleged that the defendant had deceived him about purchasing the stock. There is the evidence of the plaintiff and his partner that the defendant in this conversation admitted that hë had deceived the plaintiff in this matter; but there is no statement that he admitted that he consciously deceived him, or that he ever made to the plaintiff any statement which the defendant knew to be false. The plaintiff says that the defendant admitted to him that the bank was insolvent when he became cashier. The defendant denies this. But it is immaterial, since the plaintiff does not say that the defendant's admission went to this: that he knew the fact at the time he was consulted by the plaintiff about the stock. The plaintiff does say in one part of his direct examination, “I asked him why he had deceived me and the other people in turning over their property there, when he knew the stock was not worth the paper it was written on. He said he found it so when he went into the bank, and he admitted to me that he knew the fact.” But the witness does not mean that the defendant said that he found, when he went into the bank, that the stock was worthless; for the next question is, “Did he admit anything about his knowledge of the solvency of the bank at the time he made these representations to you?” To which the plaintiff replied, “I won't be positive about that; but he said he knew he had deceived me in the representations he made to me about the bank and about the...