Trimble v. Reid
| Decision Date | 14 June 1895 |
| Citation | 97 Ky. 713 |
| Parties | Trimble v. Reid. |
| Court | Kentucky Court of Appeals |
APPEAL FROM MONTGOMERY CIRCUIT COURT.
A. T. WOOD FOR APPELLANT.
REID ROGERS, O'REAR & BIGSTAFF AND SMITH HURT FOR APPELLEE.
This is an appeal by J. G. Trimble from a judgment of the Montgomery Circuit Court against him in favor of Mrs. E. J. Reid, for the sum of $1,525.
This suit was filed by appellee, alleging substantially the following state of fact: That in February, 1887, and in July, 1887, she purchased of defendant, J. G. Trimble, thirty-three shares of stock of the Exchange Bank of Mt. Sterling, Ky., at the sum and price of $120 per share, and paid him for same. That at the time of said purchase, and in order to induce appellee to make same, Trimble stated that said stock was worth $120 per share; that the book value of same was $110 to $115 per share; that said bank had regularly declared a semi-annual dividend of four per cent.
And appellee further charges that appellant being the president of said bank at the time, on a salary, had, at the regular semi-annual periods next before each of said sales, caused to be published the card statement of the condition of said bank, sworn to by the cashier and endorsed on the back by the president and the directors of said bank, calling attention to same and soliciting business on the faith of same. That in this statement were gross errors affecting the value of said stock in this, that of the loans and discounts, as published in said card, the sum stated exceeded by thirty thousand dollars or more the actual bona fide loans and discounts held by said bank. That of the amount stated as held by said bank in over-drafts, some $7,500 was utterly worthless, old and stale claims. That in the item stated as due depositors same was stated at $7,500 less than was really due to same. That as to the undivided profits claimed as on hand in said bank at $14,000 to $15,000, that there were no undivided profits, and appellee said, that in these matters, both the personal obligations of appellant, made to induce this purchase, and the published statement of the bank, were false and untrue in point of fact, and that appellant knew them to be untrue at the time they were made and published, and were made with the fraudulent intent and purpose of deceiving the agent who purchased this stock for appellee, and of inducing him to purchase same at a price greatly in excess of its true and real value. That he, this agent, relied on said statement of the condition of the bank as well as on the personal representation of appellant in making said purchases.
Appellee says further that by reason of these several errors and false statements in this bank publication, the stock was not in fact and in truth worth more than $70 per share at the time of said purchase.
That the officers of the bank made the published statements, as charged (same being copied into the petition), was not denied by appellant, though he denied all knowledge as to the errors or false statements charged to be in same, and denied all fraud, denied that he sold the first twenty-five shares to appellee at all, denied that he owned said twenty-five shares of stock, but said they belonged to a Mrs. Allen, and that Thompson and Jones were her agents in the sale of same. The evidence conduced to establish the truth of these latter statements. And denies that he had any personal interest in either of the sales, but admits that he acted as agent for Mize in the sale of the last eight shares of the stock bought by appellee in July, 1887.
Neither Mize nor Mrs. Allen was made a party defendant in the suit.
This petition, it will be observed, was, in all its essential features, an action for deceit, and it was essential to allege, as it did, the false statements, whether personally or by the published statement of the bank. And that appellant knew them to be false when made, as well as that he made them with the fraudulent purpose to deceive appellee's agent in making the purchases.
The petition thus framed presented a good cause of action, and had the case, as charged in the petition, been submitted to the jury by proper instructions we can not say that we would be inclined to disturb the verdict.
The instructions, however, did not follow the case as stated in the petition, but made a wide departure from same.
By the first and second instructions asked by appellee and given by the court, the jury were told, in substance, that it was admitted by the appellant that the statement of the assets and liability of the bank were published, as stated by appellee in her petition, substantially as pointed out heretofore. And that if the jury believed, from the evidence, that said published statement was untrue, to any material degree, and that said published statement was read and relied on by the plaintiff's agent in making the purchase of the stock as described, then they will find for plaintiff.
Thus it will be seen omitting altogether from the question submitted to the jury any inquiry as to whether the appellant knew that said statement was false, or whether he made or published same with any fraudulent intent or purpose, either generally to deceive the public or those dealing with the bank or dealing with each other on the faith of such published statement, or to particularly deceive the agent of appellee in purchasing this stock. This matter of knowledge of the falsity of these statements or some of them, going materially to the merits of the case, was of the very essence of this action of deceit, and upon which, and upon which only, could this action be maintained.
This defect in instructions one and two as pointed out is not cured by the third instruction, also asked and given by the court. It is as follows: ...
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