Keener v. Baker, 1,120.

• Decision Date: 03 April 1899
• Docket Number: 1,120.
• Citation: 93 F. 377
• Parties: KEENER et al. v. BAKER.
• Court: U.S. Court of Appeals — Eighth Circuit

93 F. 377

KEENER et al. v. BAKER.

No. 1,120.

United States Court of Appeals, Eighth Circuit.

April 3, 1899

John K Vanatta, for plaintiffs in error.

Victor A. Elliott, Willis V. Elliott, and Thomas Mitchell, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

This action was brought by Cyrus A. Baker, the plaintiff below against George L. Keener, C. G. Kingsbury, and M. S. Herring the defendants below, to recover the purchase money paid by the plaintiff to the defendants on account of the purchase of the Catherine lode mining claim, situated in Cripple Creek Colo., upon the ground that the purchase was induced and the money obtained from the plaintiff by the false and fraudulent representations and devices of the defendants. The Nugget Mining Company owned the alleged lode mining claim, and the transfer of the title to the interest in the mine which the plaintiff purchased was to be effected by transferring to him 345,111 shares of the stock of the corporation. The plaintiff paid the defendants at the date of the purchase $10,000, and afterwards the further sum of $416.66. The answer denied the fraud. The case was tried before a jury, who found a verdict for the whole sum claimed by the plaintiff, upon which judgment was rendered, and the defendants sued out this writ of error. There was no demurrer to the complaint, and no exceptions were taken to the charge of the court.

At the close of the plaintiff's testimony the defendants moved 'for a judgment as in case of nonsuit,' upon the ground that the evidence was not sufficient to support the plaintiff's action; and the denial of this motion by the court is assigned for error. After this motion was overruled, the defendants introduced their testimony, and this was a waiver of any exception to the ruling of the court denying the nonsuit. Jefferson v. Burhans, 58 U.S.App. 597, 29 C.C.A. 487, and 85 F. 924.

There was a motion for a new trial, which was overruled, and that ruling is assigned for error; but it is well settled in the courts of the United States that the ruling on a motion for a new trial is not the subject of exception. Condran's Adm'x v. Railway Co., 14 C.C.A. 506, 32 U.S.App. 182, and 67 F. 522.

The remaining assignment of error is that 'the complainant did not, nor doth, state facts sufficient to constitute any cause of action. ' The ground upon which this contention is rested is that there is no specific allegation in the complaint that the mining stock which the plaintiff purchased was worthless. But there is an allegation that the mine for which the plaintiff paid his money 'had no value whatever, except as a prospect,' and that, by reason of the defendant's fraudulent representations in relation thereto, the plaintiff was damaged in the sum of $10,416.66. It sufficiently appears from the complaint that the thing which the defendants sold to the plaintiff, and for which he paid his money, was a lode mining claim, which was represented to be rich and of great value, and which the jury found to be no mine at all and to have no value. In making the sale and purchase according to the averments of the complaint, the stock was not considered at all, but only the mine. The mine was the thing purchased, and the stock passed or was to pass as a mere incident to the purchase of the mine, and as a means of conveying the...