McAleer v. Horsey

• Citation: 35 Md. 439
• Parties: HUGH MCALEER v. OUTERBRIDGE HORSEY.
• Decision Date: 19 March 1872
• Court: Court of Appeals of Maryland

35 Md. 439

HUGH MCALEER v. OUTERBRIDGE HORSEY.

Court of Appeals of Maryland

March 19, 1872

APPEAL from the Circuit Court for Washington County.

This action was brought by the appellee in the Circuit Court for Frederick county, to recover from the appellant in damages the sum of $2,000, alleged to have been obtained by false and fraudulent representations made by the appellant, to induce the appellee to take stock in certain Nevada silver mines. The cause was removed by the appellant to Washington county where it was tried and a verdict for the full amount claimed with interest, was rendered in favor of the appellee. The form of action was case for deceit.

The case is stated in the opinion of the Court.

Three exceptions were taken in the Circuit Court by the defendant. The first is omitted as it was virtually abandoned in this Court.

Second Exception.--After the evidence and ruling in the preceding exception, made a part hereof, the plaintiff having given evidence in chief by himself as a witness, to show that the defendant had made to him the representations set forth in the declaration, and the defendant having testified as a witness in the cause to the effect that he did not, in the interview spoken of, make the statements so testified to by the plaintiff, the plaintiff then offered to prove by Samuel Ahalt, (the witness who had gone with him near to the office of the defendant, where the interview between the plaintiff and the defendant took place, said witness having been previously requested by defendant to procure plaintiff to take an interest in the mines mentioned in the declaration, and had gone with the plaintiff to Frederick, where plaintiff went to see defendant on that subject,) that immediately after the interview aforesaid, the plaintiff met the witness, Ahalt, and being out of the presence and hearing of the defendant, gave to said Ahalt an account of the statements made by the defendant at said interview, which were in all respects similar to those testified to in chief by the plaintiff--the witness giving in detail what the plaintiff told him had occurred in that interview as to the defendant's representations--and thereupon the defendant's counsel disclaiming, at the time of the plaintiff's offer, and not before, all purpose of impeaching the integrity of the plaintiff in his understanding or version of the defendant's representations as testified to by him, objected to said offered testimony, but the Court overruled the objection and allowed the evidence to be given to corroborate the testimony of the plaintiff so given in chief, and thereupon the defendant excepted.

Third Exception: The plaintiff prayed the Court to instruct the jury as follows:

1. That if they believe that the defendant, in making sale to the plaintiff of the shares or interest in the silver mines in the declaration mentioned, represented to him that he had paid $25,000 in money, and not in stock or lands, at a valuation for one-fourth interest in the silver mines in the declaration mentioned, with interest, to induce the plaintiff to purchase such shares or interest, and if the jury find that such statement was falsely and knowingly made by the defendant, and that the plaintiff acted thereon and purchased such shares and paid for them, the plaintiff is entitled to recover for such false representation, although they should find that the defendant was not in fact benefitted by such sale and representation, or did not expect to be.

2. That if they find that the defendant falsely represented to the plaintiff, with knowledge at the time of the falsity of such representation, that he had paid $25,000 in cash money for an undivided fourth interest in the mines mentioned in the declaration, with intent to induce him, the plaintiff, to purchase an interest therein, and that the plaintiff believing such representation to be true, was actually induced by such false representation to purchase two interests or shares therein, the whole in one hundred shares or parts to be divided, and pay to the plaintiff therefor the sum of $2,000, the plaintiff is entitled to recover in this action such amount as the jury may find the plaintiff has lost, by the direct consequence of such false representation if he in fact has sustained any such loss; not to exceed, however, the amount paid for said two shares, with interest thereon.

3. If the jury find that the defendant, McAleer, represented to the plaintiff, Horsey, that he, McAleer, was the owner of the one-fourth interest in the silver mines mentioned in the declaration, and that he had paid the sum of $25,000 therefor in money alone, and not in money and stocks, or lands, or anything at a valuation, and which latter representation was false to the knowledge of said McAleer at the time, and that McAleer meant by such representation to induce Horsey also to become the purchaser of an interest in the said mines, and that Horsey, relying on such representation, and believing it to be true, did act upon it, and as a consequence thereof, agreed to purchase an interest in the mines, and paid the defendant, McAleer, the sum of $2,000 for an interest; and if the jury further find that McAleer did not pay the sum of $25,000 in money for one-fourth interest in the mines, but acquired that interest by the payment of money and the transfer of lands at a valuation; and also find that by reason of such false representation Horsey has suffered damage, then the plaintiff is entitled to recover such loss as may have been the direct result of such false representation, not exceeding in amount the sum so as aforesaid paid, with interest; and it is no defence to the plaintiff's right to recover, that the defendant was not benefitted or expected to be benefitted by such false representation.

The plaintiff's fourth prayer was omitted from the record, and was, therefore, not passed upon by the Court.

The following were the prayers of the defendant:

1. That even if the jury find from the evidence in this cause, that the subscriptions of the plaintiff for the shares taken by him in the silver mines mentioned in the declaration were obtained from the plaintiff by a misrepresentation of the price and manner in which the defendant had paid for one-fourth interest in said mines, the plaintiff is not entitled to recover in this form of action, provided they find that the defendant believed, at the time of such misrepresentation, that said mines were worth $100,000, the price at which they were valued in the sale thereof, and that the defendant did not intend to injure the plaintiff or defraud him out of his money.

2. That even if the jury find from the evidence in this cause, that the subscriptions of the plaintiff for the shares taken by him in the silver mines mentioned in the declaration, were obtained from the plaintiff by a misrepresentation of the price and manner in which the defendant had paid for one-fourth interest in said mines, the plaintiff is not entitled to recover in this form of action, provided they find that the defendant believed, at the time of such misrepresentation, that said mines were of substantial value, and that the defendant did not intend to injure the plaintiff or defraud him out of his money.

3. That no misrepresentation by the defendant of the price which he had paid for his own interest in said mines, furnishes of itself a sufficient cause of action entitling the plaintiff to recover in this suit.

4. If the jury believe that in the interview between the defendant and plaintiff, at which the plaintiff agreed to subscribe for a share in said mines, the defendant did not mean nor intend to represent to the plaintiff that he had paid in actual money the sum of $25,000 for one-fourth interest in said mines, then, under the pleadings in this cause, the plaintiff cannot recover, because such finding negatives the fraudulent intent charged in said declaration, even although the plaintiff may have so understood him.

5. That fraud is odious in contemplation of law, and not to be presumed, and the burthen of proof is on the plaintiff to overcome such legal presumption by evidence satisfactory to the jury.

6. That it is for the jury to determine, under all the evidence in the cause, whether the representations made by the defendant to the plaintiff were misrepresentations of facts material to the real value of the property, and unless the jury find that they were of facts material to such value, the plaintiff cannot recover by reason of said representations having been made.

7. That the plaintiff is not entitled to recover in this case, unless the jury find from the evidence that the defendant procured the money of the plaintiff upon his said subscriptions by means of the representations charged in the declaration or some count thereof; and further, that said representations were false in fact, and were made fraudulently and deceitfully, and with an intent that the plaintiff should act thereon, believing the same to be true, and that the plaintiff did act thereon and was injured thereby.

8. That the representations and statements made by the defendant to witness in this cause, other than the plaintiff, are not evidence to be considered by the jury for the purpose of proving what representations were made by the defendant to the plaintiff, or for the purpose of shewing the falsehood of the representations made by him to the plaintiff, and the jury are only at liberty to consider the representations and statements made by the defendant to said witnesses, for the purpose of ascertaining the intent of the defendant in any representations he may have made to the plaintiff.

9. If the jury believe from the evidence that the shares sold by the defendant to the plaintiff, were not shares...