Brandt v. Krogh

Action on Note—Cross-complaint—Cancellation for Fraud—Surrender of Oil Stock—Support of Findings.—In an action on one of two notes executed in consideration of a transfer of stock in an oil company, of which the comaker was manager, in which the other maker defended the note and sought by cross-complaint to cancel the notes for fraud and misrepresentation in the procurement of the notes to the payee for a transfer of worthless stock from him, by agency of the manager whose false and fraudulent representations procured the notes, it is held that the findings that both notes were procured by the alleged fraud and misrepresentation were sufficiently sustained by the evidence, and that an attack upon its insufficiency is wholly devoid of merit.

Id.—Inconsistencies in Testimony of Defendant Defrauded—Bule as to Discredit not Imperative.—The rule embodied in the maxim, “Falsus in uno, falsus in omnibus,” as applied to inconsistencies in the testimony of the defendant claiming to have been defrauded, is not imperative, and does not mean that the entire testimony of the witness must necessarily be disregarded or disbelieved, because there may be found falsehood in certain parts of his testimony, but it merely means that when the witness has sworn falsely in part, his entire testimony may for that reason be disregarded. But a jury or trial judge trying a ease has the right to believe and credit certain parts of the testimony of the witness, who has sworn falsely as to certain other material parts thereof.

Id.—Presumption as to Action of Judge—Determination Conclusive upon Appeal.—It is to be presumed that the trial judge in the case at bar reconciled and accounted for to his own satisfaction any and all inconsistencies which might be made to appear in the testimony of the comaker defrauded, and from aught that appears in the record to the contrary, it may be that what seems to be contradictory statements in his testimony were not the result of a desire to make a false statement, but were due to a mistake or to a treacherous memory. But whatever may be the ground of the determination by the trial judge, his findings, so far as based upon the testimony of such witness, are conclusive upon this court.

Id.—General Bule as to Fraud Based on Opinion—Qualified Bule-^ Opinion Based on Facts.—As a general rule, fraudulent. representations cannot be predicated upon a mere expression of opinion, however erroneous such opinion may be; but this rule is subject to-the qualification that an opinion based upon alleged facts known by the party stating them to be nonexistent will not be permitted to escape responsibility by the plea that he was merely declaring his opinion.

Id.—Bule as to Executed Contracts—Opportunity to Investigate Fraud—Diligence Bequired.—Where one undertakes to secure, on the ground of misrepresentations and fraud, restoration of the consideration which supported an executed contract, he cannot prevail, if it be made to appear that he could, by the exercise of ordinary prudence or diligence, have detected the fraud, or have ascertained facts which would have disclosed that the representations were false and fraudulent.