Merrill v. Floyd

• Decision Date: 30 June 1892
• Docket Number: 23.
• Citation: 50 F. 849
• Parties: MERRILL v. FLOYD.
• Court: U.S. Court of Appeals — First Circuit

50 F. 849

MERRILL v. FLOYD.

No. 23.

United States Court of Appeals, First Circuit.

June 30, 1892

William A. Macleod and Robert D. Trash, for plaintiff in error.

Benjamin F. Butler and T. Henry Pearse, for defendant in error.

Before GRAY, Circuit Justice, and PUTNAM and NELSON, Circuit Judges.

GRAY Circuit Justice.

The original action was brought on September 6, 1889, by Floyd against Merrill, for fraudulent representations as to the condition of a corporation in which both parties owned shares, whereby the defendant induced the plaintiff to sell his shares to the defendant for much less than their value. The answer denied all the allegations of the declaration. On February 2, 1892, the counsel for both parties signed and filed a stipulation in writing in these words:

'It is agreed by counsel for plaintiff and defendant in the above-entitled case that the same be marked, 'Jury waived' tentatively.'

The case was thereupon tried by ALDRICH, J., who, on March 10th filed the following 'findings of fact and verdict:'

'This was a trial before the court, the parties having waived a jury trial. Having heard and considered all the evidence submitted, and the arguments as well, I find that the defendant had peculiar knowledge of the condition of the corporation and its affairs and the value of the stock; that the plaintiff was comparatively ignorant of the situation and the defendant knew this; that the defendant, having such knowledge, sought the plaintiff for the purpose of possessing himself of his interest in the corporation, and in the negotiations following studiously and artfully concealed material facts as to value, and artfully misrepresented the true condition, and, having deceived the plaintiff by such means, secured his stock for the sum of one thousand dollars, when in fact it was worth four thousand dollars. My verdict, therefore, is that the plaintiff recover the difference between the sum paid by the defendant and the value of the stock thus obtained, which is three thousand dollars, together with interest from date of writ.'

On April 16, the judge denied a motion 'to set aside the verdict on the ground that there is no evidence to support the same. ' The defendant thereupon tendered a bill of exceptions to the findings and rulings at the trial, upon the ground that there was no evidence to support the findings of fact, as well as upon the ground that upon those findings of fact the defendant was not liable; and this bill of exceptions was allowed and filed. On the same day, a motion by the plaintiff that 'judgment be entered on the verdict in this cause non obstante the exceptions' was granted and judgment was entered for the plaintiff for the sum of $3,458 and costs. On April 26th the defendant sued out this writ of error. The defendant in error has now moved to dismiss the writ of error, because no exceptions were taken at the trial, but...