Rewick v. Dierks Lumber & Coal Company
| Decision Date | 25 November 1922 |
| Docket Number | 22115 |
| Citation | 190 N.W. 875,109 Neb. 300 |
| Parties | TRACY C. REWICK, APPELLEE v. DIERKS LUMBER & COAL COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.
AFFIRMED.
J. S Kirkpatrick and M. L. Easterday, for appellant.
Peterson & Devoe, contra.
Heard before MORRISSEY, C. J., LETTON, ALDRICH and DAY, JJ REDICK, District Judge.
Action to recover damages for false representations. Petition alleges that plaintiff while in its employ entered into a contract June 28, 1906, with defendant, whereby be agreed to sell and defendant agreed to purchase any stock owned by plaintiff in defendant company, in case plaintiff left their employ, at its value to be agreed upon by the parties or by arbitration; "provided, that the value so determined shall not be less than par, earned dividends, and undivided profits;" that about May 1, 1918, plaintiff was about to leave the employ of the defendant, and sold to defendant 72 shares of stock held by plaintiff for $ 225 a share; that plaintiff was induced to make the sale at that price by false representations on the part of the defendant that the "value of said stock did not exceed $ 225 a share." and "falsely and fraudulently concealed from plaintiff by the aforesaid false statements * * * what the value of the stock was;" that at the time of the sale the value of the stock computed at par, plus earned dividends and undivided profits, and its actual value was $ 335.73 a share, and asked judgment for the difference, $ 7,972.56. Defendant answered admitting its incorporation and denying all other allegations of the petition. Trial to a jury resulted in a verdict for plaintiff for $ 4,050, and defendant appeals.
Error is assigned on overruling defendant's motion to make the petition more definite and certain by stating the actual value of the stock and by setting out what false representations as to the value were made. The petition alleged the actual value at $ 335.73 and the false representation that its value was $ 225. This was sufficient.
Error is claimed in the reception in evidence of the contract referred to in the petition, that it was immaterial and irrelevant. Defendant's position seems to be that at the time of the sale of the stock the parties dealt without reference to the contract; this was one of the litigated questions. It was perfectly competent for the parties, by the terms of the contract itself, to agree as to the value of the stock, and such an agreement, fairly made, would render the contract immaterial; but plaintiff claims he was induced to enter into the agreement of sale by fraud and that thereby he lost the benefit of his contract; and it seems clear that on plaintiff's theory the contract was quite material to show what he was entitled to receive for his stock and how much he was damaged. It will be noted that, in the absence of this contract, plaintiff's measure of damages would be the difference between the amount he received and the market value of the stock; with the contract, the second term of comparison is par, unearned dividends, and undivided profits. Moreover, it appears from the evidence that, at the date of the transfer of the stock, the contract was canceled. There was ample evidence to support a finding that the parties were dealing with the contract, and it was properly received in evidence.
On the question of the value of the stock, there were received in evidence audits by expert accountants showing condition of defendant's business December 31, 1916, 1917, and 1918. Defendant claims these were incompetent, although conceding that the books of defendant would have been competent. These audits were procured to be made by defendant, were a part of its records, and were used by it in securing credit at the banks, for information to commercial agencies and as...
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