Jackson v. Jackson
| Decision Date | 15 October 1897 |
| Docket Number | 18,230 |
| Parties | Jackson v. Jackson |
| Court | Indiana Supreme Court |
Rehearing Denied Jan. 5, 1898.
From the Wayne Circuit Court.
Affirmed.
D. M Bradbury and Frank W. Ballenger for appellant.
John F Robbins, for appellee.
On January 12, 1897, appellant commenced this suit to recover as damages the sum of $ 5,000.00 and over. The action is based upon certain alleged false and fraudulent representations made by appellee in regard to the value of certain bank stock of the First National Bank of Cambridge City, Indiana, purchased by him from appellant in October, 1890, who was at the time of the sale the owner of eighty shares of the capital stock of that bank of $ 100.00 each. An answer in two paragraphs was filed, the first being a denial, and the second averred that the cause of action did not accrue within six years before the commencement of the action. Appellant replied to the second paragraph, admitting the allegation of the answer, but averring facts by which he sought to show that appellee had concealed the cause of action upon which the complaint was based, and thereby suspended the operation of the statute of limitation. A demurrer was sustained to this reply, and appellant refusing to plead further, judgment was rendered that he take nothing and the appellee recover cost. The ruling of the court upon this demurrer is the only error assigned. The reply, in part, is a repetition of the complaint, and the principal facts stated therein are substantially as follows: That at the time plaintiff sold the bank stock to the defendant he was preparing to leave the State of Indiana for permanent residence in some other state; that defendant was then, and had been for many years prior thereto, a stockholder and cashier of the bank, and had full knowledge of all facts sought by plaintiff tending to give the value of the bank stock, and a full knowledge of its worth at the time; and plaintiff told the defendant that he had no information as to such facts, but came to him for such knowledge. That at once, and repeatedly thereafter, during the negotiations for the sale and purchase of the stock, defendant said he would give all the information desired by the plaintiff, and did then, and repeatedly during the same negotiations, state to the plaintiff that the bank's surplus fund of $ 50,000.00 had been greatly impaired by bad loans, and the amount of the bad debts had reduced the value of the stock to a sum less than its apparent face value, as shown by the reports of the bank. Defendant said plaintiff's stock was not worth $ 10,000.00, but he agreed to give latter amount for it, and purchased it for that price. And during the said negotiations defendant repeatedly requested plaintiff to say nothing to any one about his stock being for sale, but to keep the matter entirely between themselves, and he, defendant, would pay the full worth of the stock, and as much or more than anyone else would give; and defendant induced plaintiff to believe that to make public the fact of his stock being for sale would be injurious to the bank. At the time of the transfer of the stock a question arose as to who should have the undivided profits, but defendant finally said in a subdued tone, "We will split the difference if you will accept the amount, and say nothing to anyone; but just keep the whole affair to ourselves." That such statements were made with a cunning and corrupt design to deceive and mislead plaintiff, and to make him rest secure and satisfied, believing he would receive the full value of his stock, and to prevent him from making inquiries from others, then or afterwards, as to the value of his stock, and about the honesty and fair dealing of the defendant with plaintiff in connection with the purchase of said stock; and that defendant's representations in regard to the value of the stock, and in reference to bad paper in the bank, and the depreciation in value of the stock were false and fraudulent, as defendant well knew. That in deference to the wishes of the defendant, and in compliance with his repeated requests, plaintiff made no inquiry of anyone in regard to the value of the stock, nor as to the truth of the statements made concerning the kind and value of the paper in the bank, but stated to the defendant that he would accept his statements, and did so accept them; and, relying upon and believing them to be true, and resting securely in the belief that he would receive the full value of his stock, and that all the statements made by the defendant during the negotiations were true, he left the State and went to Ohio, and subsequently to California, and remained out of the State until August, 1895, and has not been in Wayne county since leaving the State. He did not learn the facts concerning the value of his stock, nor the extent and purpose of the false representations made by defendant, until recently, the first information he had being a mere rumor, which reached him in California in 1893, that the stock so sold, at the time of the sale was worth $ 12,000.00, and he subsequently learned that the true value of the stock was $ 14,000.00. Upon hearing the above rumor he wrote to the defendant for information as to the truth of such rumor and as to the worth of such stock, and the defendant, with the fraudulent design of further deceiving the plaintiff, and to conceal further his fraudulent transaction with plaintiff, wholly failed, neglected, and refused to answer plaintiff's letter; and then continually thereafter concealed all facts about the value of the stock, and about his fraudulent dealing with plaintiff, and all facts that might lead to their discovery, by neglecting to and refusing to answer the plaintiff's letter, and later letters, written to him by appellant.
It is claimed by counsel for appellant that these facts set up in the reply are sufficient to show that appellee so concealed the cause of action as to check the running of the statute until after the discovery of the action, within the meaning of section 301, Burns' R. S. 1894 (300, R. S. 1881) which provides, "If any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation, after the discovery of the cause of action." The statute of limitation is recognized as one of repose, and it has been frequently held by this court, in placing an interpretation upon the above section, that in order to bring a case within the concealment intended by its provisions, there must be something more alleged and proved than the mere silence or general declarations upon the part of the person said to have concealed the cause of action. There must have been some trick or artifice to prevent a discovery, or some material fact misstated to or concealed from the party by the means of some positive or affirmative act or declaration when inquiry was being made or information sought, and under such facts the operation of the statute is suspended, and does not begin to run until after the discovery of the cause of action, or, as the authorities assert, from the time the discovery by the exercise of ordinary diligence might have been made. A failure to discover the cause of action does not, like its concealment, suspend the running of the statute. The concealment within the meaning of the statute cited, arises out of fraud, and there can be no concealment without fraud; and while the fraud in a particular case may be sufficient to give to the complaining party a right of action, still it may not, in the same case, be also sufficient to serve to conceal the cause of action within the contemplation of the law. In support of these...
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