State ex rel. Sorensen v. State Bank of Omaha, 29228.

Citation260 N.W. 195,128 Neb. 705
Decision Date11 April 1935
Docket NumberNo. 29228.,29228.
CourtSupreme Court of Nebraska

128 Neb. 705
260 N.W. 195


No. 29228.

Supreme Court of Nebraska.

April 11, 1935.

Syllabus by the Court.

1. Every material allegation of the petition, not controverted by the answer, shall, for the purposes of the action, be taken as true, except allegations of value or amount of damage. Comp. St. 1929, § 20-842.

2. Where, by false and fraudulent representations of the vendor, a vendee has been induced to purchase bonds, he may rescind the sale, tender back the bonds, and recover the purchase price as a trust fund.

Appeal from District Court, Douglas County; Dineen, Judge.

Action by the State, on the relation of C. A. Sorensen, Attorney General, against the State Bank of Omaha, wherein E. H. Luikart was appointed receiver and wherein Frances C. Morgan intervened. From judgment for the receiver, the intervener appeals.

Judgment reversed, and cause remanded, with directions.

[260 N.W. 196]

Reed, Ramacciotti & Robinson and Crossman, Munger & Barton, all of Omaha, for appellant.

F. C. Radke, of Lincoln, Hanley & O'Brien, of Omaha, and Barlow Nye and W. A. Crossland, both of Lincoln, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

GOOD, Justice.

Mrs. Frances C. Morgan, intervener, in her petition in intervention alleged that she was induced by fraudulent representations, made to her by the president of the State Bank of Omaha, to purchase from it certain bonds. She sought rescission, tendered back the bonds, and asked that the amount paid by her for the bonds be declared held by the receiver in trust for and restored to her. The receiver in his answer pleaded the statute of limitations, and denied certain allegations in the petition. A reply put in issue the allegations of the answer. The trial resulted in a judgment for the receiver. Intervener has appealed.

The receiver now admits that the plea of the statute of limitations is unavailing.

Intervener in her petition alleged that, upon the recommendation of an employee of the State Bank of Omaha, she went to it for the purpose of consulting its officers and managers concerning an investment; that at the bank she met its president and manager and explained to him that she was a widow, without business experience and without knowledge of what were safe and reliable securities or the value of the same, and must rely upon the advice of others in making any investment in securities; that she had a small amount of money which she desired to invest in safe securities; that the president treated her very cordially and stated that he had been well acquainted with her husband in his lifetime and, in substance, that they were intimate friends, and pretended great sympathy for intervener because of the loss of her husband; that she was impressed with the apparent honesty and truthfulness of the statements made by the president; that he thereupon advised her to purchase from said bank two bonds, issued by the Keystone Water Works...

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