Hull v. Geary
| Citation | 71 W.Va. 490,76 S.E. 960 |
| Court | West Virginia Supreme Court |
| Decision Date | 17 December 1912 |
| Parties | HULL. v. GEARY. |
(Syllabus by the Court.)
1. Corporations (§ 121*)—Sale of Stock— Breach of Warranty—Damages.
In assumpsit on the breach of an express warranty that shares in a corporation were worth their face value, the proper measure of damages is the difference between the warranted value of the shares and their actual value at the time of the transaction. Whether fraudulent misrepresentation was made by the warrantor as to the value of the shares is wholly immaterial in a suit on the warranty and calls for no other measure of damages.
[Ed. Note.— For other cases, see Corporations, Cent. Dig. §§ 504, 505; Dec. Dig. § 121.*]
2. New Trial (§ 39*)—Grounds—Error in Instructions.
An instruction recognizing two different measures of the damages when only one is applicable in the case, and plainly tending to mislead the jury, is error for which the trial court is justified in setting aside the verdict and awarding a new trial at the instance of the party over whose protest it was given and to whose prejudice it tended.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 57-61; Dec. Dig. § 39.*]
Error to Circuit Court, Kanawha County.
Action by E. Flynn Hull against W. B. Geary. Verdict for plaintiff. From an order setting aside the verdict and granting a new trial, plaintiff brings error. Affirmed.
W. R. Thompson, of Hinton, and E. B. Dyer, of Charleston, for plaintiff in error.
H. D. Rummel and Upshur Higginbotham, both of Charleston, for defendant in error.
The trial court properly set aside the verdict and granted defendant a new trial. The assignments of error must be overruled and the case remanded.
The action is assumpsit, for recovery on a warranty. The warranty was to the effect that certain stock in a corporation, which defendant transferred to plaintiff as part payment for real estate conveyed to the former by the latter, was worth the face value of the shares.
The jury found a verdict in favor of plaintiff for the face value of the shares, with interest. On the question of the actual value of the stock at the time of the transaction, the evidence is conflicting. We do not presume to pass on the weight of the evidence in this particular, yet it would seem to be a most reasonable inference from the evidence that the stock had some value. From the facts proved a jury would scarcely be warranted in finding that the stock was absolutely without value. But, by reason of an erroneous theory that was followed at the trial, we can not say that the jury made a finding that the stock was so worthless that tbe brefich of the warranty injured plaintiff to the full amount for which he had taken the shares. The erroneous theory on which the case was submitted to the jury may have caused them to find the verdict for the full amount though they believed the stock worth something below par. And it was this misdirection of the jury that fully justified the trial court in setting aside the verdict.
The appropriate action for recovery, under the facts and circumstances presented, was that which plaintiff adopted—assumpsit on the express warranty. If fraudulent misrepresentation had been made to plaintiff in the transaction, he could have done all that the law required of him toward a full rescission of the contract whereby he took over the stock as part payment for real estate, and then sued for damages if defendant did not accept his offer to rescind. However, the two forms of recovery are quite distinct Principles applicable to the one are wholly inapplicable to the other. The following text is in point: SO Amer. & Eng. Enc. Law 131.
Though plaintiff chose the appropriate action, he failed to observe at the trial the...
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State Road Commission v. Darrah
...the instruction offered by the landowners had a distinct tendency to confuse rather than to instruct or to enlighten the jury. Hull v. Geary, 71 W.Va. 490, pt. 2 syl., 76 S.E. 960. To the extent that the instruction defines a different measure of compensation from that stated in State's Ins......
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Reynolds v. Tice
...from the record that the erroneous instructions were harmless, then, and only then, is a new trial in order. See, Hull v. Geary, 71 W.Va. 490, 76 S.E. 960 (1912). It was the defendant's burden to show prejudicial error. Webber v. Farmer, Wyo., 410 P.2d 807, 811 (1966). See, Rule 7.04, W.R.A......
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West Virginia Dept. of Highways v. Bartlett
...a new trial at the instance of the party over whose protest it was given and to whose prejudice it tended.' Pt. 2, syllabus, Hull v. Geary, 71 W.Va. 490, 76 S.E. 960. 3. The approved and general rule for the measure of damages in an eminent domain proceeding where parts of the land are take......
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Hayssen Mfg. Co. v. Mootz
... ... 207] e article warranted and the article ... delivered. Norman Lumber Co. v. Manufacturing Co., ... 100 W.Va. 515, 528, 131 S.E. 12; Hull v. Geary, 71 ... W.Va. 490, 76 S.E. 960; 24 Ruling Case Law, p. 83; Tiffany on ... Sales (2d Ed.) p. 368. But there may be special damages ... ...