Johnson v. Domer

• Decision Date: 01 December 1913
• Citation: 136 P. 1169,76 Wash. 677
• Parties: JOHNSON v. DOMER.
• Court: Washington Supreme Court

136 P. 1169

76 Wash. 677

JOHNSON v. DOMER.

Supreme Court of Washington

December 1, 1913

Department 1. Appeal from Superior Court, Spokane County; J. D. Hinkle Judge.

Action by Edward Johnson against S. P. Domer and others. From a judgment against him, the defendant named appeals. Reversed and remanded, with instructions.

S. P Domer, B. C. Mosby, and Harris Baldwin, all of Spokane, for appellant.

Geo. M Nethercutt, of Spokane, for respondent.

CROW C.J.

Action by Esward Johnson against Anchor Oil Company, a corporation S. P. Domer, and Amelia E. Domer, his wife, to recover $825 alleged to have been paid to S. P. Domer for stock of the defendant corporation.

The complaint alleged that on or about July 2, 1907, the defendant S. P. Domer represented to the plaintiff that the stock of the defendant company was then worth 15 cents per share; that it would, in less than six months, be worth $1 per share; that the company was then producing and shipping oil from its wells in Virginia at the rate of 150 barrels a day; that the shipments would increase with further development; and that dividends would be paid within one year. Plaintiff further alleged that he was unable to read or write; that he relied upon defendant's representations; that he paid S. P. Domer $825 for 5,500 shares of stock; that the money thus paid was used by and inured to the benefit of the community, consisting of S. P. Domer and wife; that all of the alleged representations were false and fraudulent; and that plaintiff had tendered a return of the stock and demanded a return of the purchase money. Defendants denied that S. P. Domer ever made any representations to plaintiff; that he ever sold plaintiff any stock; or that he had received any purchase money therefor. Two jury trials were had. On the first trial the court dismissed the action as to defendants Anchor Oil Company and Amelia E. Domer but submitted the case to the jury as to defendant S. P. Domer, against whom a verdict was returned. This verdict was set aside for insufficiency of evidence, and a new trial was granted to S. P. Domer, but the order of dismissal as to the defendants Anchor Oil Company and Amelia E. Domer was not disturbed. On the second trial a verdict was returned in plaintiff's favor for $825, upon which a judgment was entered, and from which the defendants S. P. Domer has appealed. Plaintiff's death, which occurred subsequent to the appeal, has been suggested, and his administrator has been substituted as respondent.

On July 2, 1907, F. E. Snodgrass and A. F. Richardson, two government employés, had offices in the Symons Block, in the city of Spokane, where, as a side issue, they sold Anchor Oil Company stock; Snodgrass being secretary and treasurer of the company, in which Richardson was also interested. On that date, and for more than 15 years prior thereto, S. P. Domer was and had been a practicing attorney, with offices in another building. He at no time officed in the Symons Block and was seldom there, although he was vice president of the defendant company. Plaintiff testified that he went to the offices shown to be those of Snodgrass and Richardson, where he met Domer, who then made the false and fraudulent statements relative to the stock; that in the course of a few days, accompanied by his wife, he returned to the same offices with $825; that he again talked with appellant, who repeated his representations to plaintiff's wife; that plaintiff paid his money to appellant, who then made out and delivered the certificate and received the money, $25 in cash and $800 in check. The canceled check was not produced on the trial. Plaintiff and wife both testified they never saw or knew Domer prior to this transaction, nor did they see him for nearly three years thereafter. Appellant denied that he sold the stock, or that he ever saw or knew plaintiff or his wife prior to this controversy, which arose nearly three years after the alleged purchase of the stock when plaintiff made his charge of fraud. He further testified that he never sold any stock in the Symons Block or anywhere else, but that he had signed certificates in blank which he left with Snodgrass and Richardson to be issued when sold. The stock book, which is in evidence, contains a number of blank certificates signed by him as vice president. A. F. Richardson testified that he himself, representing the company, sold the stock and received the purchase money, which he immediately paid to Mr. Snodgrass, treasurer of the company; that the stock was issued on a blank certificate previously signed by S. P. Domer as vice president; that Domer was not present; that the certificate was in Richardson's handwriting, except the signatures of S. P. Domer as vice president and F. E. Snodgrass as secretary and treasurer; and that it was made out by Richardson in the presence of plaintiff and his wife. He further testified that appellant had never sold any stock from the office in the Symons Block. Mr. Snodgrass, who corroborated the testimony of Mr. Richardson, stated that, at both visits made by plaintiff at the Symons Block, Mr. Richardson represented the company; no one being present other than Mr. Richardson and himself. Plaintiff's certificate, which is in evidence, although signed by appellant as vice president, is not otherwise in his handwriting.

In ruling on the motion for a new trial, the trial judge said: 'I will say frankly, if this case had been tried before me, I would have said that the Johnsons might have honestly been mistaken in their identification of Domer, but that the three witnesses for the defense could not be mistaken, and if their testimony was not true they committed perjury, and that is giving proper credence to all the evidence. This case was formerly tried before a jury in Judge Webster's department of this court. At that trial the jury gave the plaintiff a verdict. Judge Webster granted a new trial. Upon a trial of the case subsequently in my department of the court, a jury again awarded a verdict to the plaintiff. A motion is now made for a new trial for the reason, among other things, the evidence does not sustain the verdict. There is nothing before me that would leave me to believe that, if a new trial was granted, the same result would not follow in the future as in the past. There is nothing to indicate any newly discovered or additional evidence. Therefore it appears to me it would be a waste of time and money to grant a new trial.' From this statement it is manifest that the trial judge found the verdict of the jury to be against the weight of the evidence, and appellant contends that he abused his discretion and committed prejudicial error in denying the motion for a new trial. Respondent contends that the jury must determine all questions of fact, and that the verdict herein must be sustained. While it is true that the jury are exclusive judges of all questions of fact, yet, when the case comes before the trial judge upon a motion for a new trial, it is his duty to determine whether the evidence is sufficient or insufficient to justify the verdict. In doing so he must be controlled by his own judgment. Cranford v. O'Shea, 134 P. 486; Brown v. Walla Walla, 136 P. 1166, just decided by this court.

Respondent cites and relies on Money v. Seattle; Renton & Southern Ry Co., 59 Wash. 120, 109 P. 307; In re Renton, 61 Wash. 330, 112 P. 348; and Suell v. Jones, 49 Wash. 582, 96 P. 4. In the Money Case the trial judge did not say that he...