Johnson v. Gulick

• Decision Date: 21 January 1896
• Parties: JOHNSON v. GULICK ET AL.
• Court: Nebraska Supreme Court

46 Neb. 817

65 N.W. 883

JOHNSON

v.GULICK ET AL.

Supreme Court of Nebraska.

Jan. 21, 1896.

Syllabus by the Court.

1. Errors assigned, but not argued, are deemed waived.

2. In actions for false representations, it is not necessary to aver or prove that the party making them at the time knew they were untrue.

3. In a suit upon a promissory note given as part payment for corporation stock, the defense being that the defendants were induced to make such purchase by certain false representations of the plaintiff, testimony showing that prior to such sale he made to other persons similar misstatements in the sale to them of a portion of the same series of stock is irrelevant and immaterial.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Anson B. Johnson against Willia D. Gulick and others. Judgment for defendants, and plaintiff brings error. Reversed.Lamb, Ricketts & Wilson, for plaintiff in error.

NORVAL, J.

Plaintiff in error brought suit in the court below upon a promissory note for $1,296, purporting to be made by the defendants in error, bearing date January 1, 1891, and payable April 1st thereafter, with interest at 8 per cent. The defendants, for answer, admit the execution and delivery of the note, but aver that it was given in renewal of a note of $1,200, executed by the defendants as part consideration of three-fifths of the corporate stock in the Commercial Publishing Company of Ogden, Utah; that plaintiff, in order to induce the defendants to make said purchase, knowingly and falsely represented to them that said corporation was the owner of a franchise in the Western Associated Press of the value of $4,000; that the defendants relied upon said representations; that the same were false and untrue; and that the defendants have been thereby damaged in the sum of $2,000. The reply was a general denial of each averment of new matter contained in the answer. There was a jury trial, resulting in a finding that there was due the plaintiff from the defendants, upon the note declared upon, the sum of $1,425.60, and that there was due the defendants upon the counterclaim the sum of $1,389, and the amount of the plaintiff's recovery was assessed at the difference between said amounts, to wit, $36.60. Judgment was rendered in accordance with the verdict, and plaintiff brings error. Thirty-six errors have been assigned, while but one has been argued in the brief of plaintiff, which relates to the rulings of the trial court upon the admission of testimony. All other errors assigned are regarded as waived, and will not be considered by the reviewing court. Gulick v. Webb, 41 Neb. 706, 60 N. W. 13.

Upon the trial, evidence was introduced tending to establish the allegations of the counterclaim set up in the answer. The defendants, in making out their case, produced and read the deposition of one J. S. Painter, who, after testifying that he and one Murphy, the last of November or the first of December, 1889, which was prior to the sale of the stock to the defendants, purchased of the plaintiff, Johnson, six-tenths interest in the Ogden Daily Commercial, deposed, in answer to questions, as follows: “Q. State whether or not at the time while negotiations were pending between yourself and Murphy, as parties of one part, and the plaintiff, Johnson, as party of another part, for the purchase and sale of this stock, any statements or representations were made to you by the plaintiff, Johnson, concerning the Western Associated Press franchise, possessed or owned by the Ogden Daily Commercial. A. Yes, sir; there were such representations made. I had a number of conversations with Mr. Johnson in regard to the purchase of the paper. I do not remember just exactly when the first one was had. The second one was had about November 20, 1889. I went into the office, and looked it over. Mr. Johnson was not in. I returned to the local editorial room. We went into the editor in chief's room, and had a talk about the paper. Q. What I want to get at is any conversation between yourself and Mr. Johnson about the franchise. A. I told him I thought I could duplicate good material in the office for $2,000; and he says the franchise was exclusive, and was worth $10,000, and that, if he was circumstanced...