Prime v. Squier
| Decision Date | 01 May 1925 |
| Docket Number | 23081 |
| Citation | 203 N.W. 582,113 Neb. 507 |
| Parties | JAMES M. PRIME, APPELLEE, v. WAITE H. SQUIER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE. Modified and remanded, with directions.
MODIFIED, AND REMANDED, WITH DIRECTIONS.
Montgomery Hall & Young, for appellant.
Kennedy Holland, DeLacy & McLaughlin, contra.
Heard before MORRISSEY, C. J., ROSE, GOOD, and EVANS, JJ., REDICK and SHEPHERD, District Judges.
Though he had been solicited by Squier for more than a year, Prime refused to buy stock in the Onahman Iron Company until the former agreed in writing to return the purchase price, less dividends, if upon inspection he was not entirely satisfied that the property was as he had been led to believe. Then he bought 1,250 shares at $ 3 a share, paying $ 3,750 for the block. Within the time agreed upon, as extended, he visited the mine and was not satisfied. He immediately so reported to Squier, and, having asked in vain for the return of his money, he tendered back the stock and sued in rescission. A jury gave him a verdict, but upon appeal to this court his judgment was reversed because the trial court instructed that naked proof that he was not satisfied upon inspection was enough to entitle him to recover, while a proper instruction in that regard would have required him to prove, in addition thereto, that he had reasonable ground for his dissatisfaction. Prime v. Squier, 105 Neb. 766, 181 N.W. 923.
A second trial, in which he attempted to show that the representations made were false, and that his inspection disclosed good grounds for dissatisfaction, resulted in a similar verdict and judgment, which are now here for review.
It was alleged by plaintiff in the petition that, among other things, the defendant falsely represented to him when he purchased the stock, July 12, 1917, that the company was well managed, prosperous, and successful; that it had cash earned and in hand out of which to pay dividends of 5 per cent. a month for the rest of the year; and that none of the stock could be bought at less than three for one. The petition further stated what appears to be a good cause of action in and of itself on the letter or contract in writing above referred to, which letter and contract reads as follows:
It is further alleged in connection with this writing that the time of visiting the mine was duly extended to the time when the same was actually visited and inspected. Then followed appropriate allegations as to plaintiff's dissatisfaction and cause of dissatisfaction, his fruitless demand upon Squier, and his tender, etc.
The assignments of error of the defendant and appellant include a complaint that the trial court refused to permit defendant to introduce photographs of stock-piled ore at the mine in April and August, 1917. There was no reversible error in this. The time in question was July 12, while the pictures were taken in April and August. There was no sufficient foundation for the introduction of the pictures by showing the manner of taking them, the setting of the camera, the distances, the directions and other things necessary to an understanding of the same. But, even if this were not so, even if the photographs should have been received, the presence of such ore at the times when the photographs were taken was established by oral evidence without dispute. The court must conclude, in the absence of anything to indicate otherwise, that what was established by undisputed evidence would not be subject to doubt in the mind of the jury.
It is also assigned that the court erred in instructing that the time for visiting and inspecting the mine was duly extended. This question seems to have been disposed of adversely to the appellant in the decision of this court heretofore referred to. It is probably as much the law of the case that due extension was had as it is that the plaintiff could not arbitrarily decide that he was not satisfied upon inspection of the mine. The court said: "The plaintiff did not inspect the mine until May, 1918, his trip having been deferred by mutual consent." Prime v. Squier, 105 Neb. 766, 181 N.W. 923. But, in addition to this, the parties may change the terms of an executory agreement before breach by subsequent parol agreement, and without new consideration. Bowman v. Wright, 65 Neb. 661, 91 N.W. 580; Moore v. Markel, 112 Neb. 743, 201 N.W. 147. Moreover, the defendant did not refuse to return plaintiff's money on the ground that this agreement in regard to inspection had been broken. He ought not to be permitted to assert such a reason at this time. Ballou v. Sherwood, 32 Neb. 666, 49 N.W. 790. Squier gave the plaintiff a letter expressly stating that he might make his visit and inspection at the time he did. He should not be permitted to repudiate his letter and agreement. Teasdale Commission Co. v. Keckler, 84 Neb. 116, 120 N.W. 955.
In another assignment defendant declares that the court erred in describing in one of its instructions a representation that "dividends of 5 per cent. a month would commence immediately" as an actionable representation, because it was a statement of something to take place in the future, and not a statement of existing fact. If there was error in this, which we somewhat doubt because the representation was said to have been made in connection with the further representation that money was earned and set apart to pay dividends at 5 per cent. a month for the rest of the year, it was not reversible...
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