Neher v. Hansen

SHAW, J.

Action to recover damages for alleged false representations made to plaintiff hy defendant. The complaint charges that in August, 1906, the defendant, who was president of a corporation known as the Humboldt Brewing Company, with intent to cheat and defraud plaintiff, represented to him that said corporation then owned a brewery at Eureka, California, together with an ice plant in connection therewith, said property being represented by a picture of a brewery which defendant then exhibited to plaintiff. That said representations were false and untrue, known by defendant to be false and untrue, and were made for the purpose of deceiving plaintiff and inducing him to purchase shares of the capital stock of said corporation; that plaintiff believed the representations to be true, and, relying upon them, was thereby induced to and did purchase .330 shares of said capital stock for which he paid the sum of $1,650. That said corporation did not in fact then own, nor has it

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ever owned, a brewery or an ice plant at Eureka, California, or elsewhere. That at the time of the purchase of the stock by plaintiff the same was, and still is, wholly worthless. The prayer of the complaint is to recover damages in the sum of $1,650, being the purchase price paid for the stock. The material allegations of the complaint were denied by the answer. The case was tried before a jury, which returned a verdict in favor of plaintiff, upon which judgment was entered. Defendant’s motion for a new trial was denied, and he appeals from the order denying the same.

The court refused to give two instructions requested by defendant and such refusal is assigned as error. The first of these instructions is as follows: 11 Plaintiff cannot recover in this action unless he was deceived by the alleged representations, and if the means of khowledge are at hand, equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived.” In support of his contention appellant cites

Hanscom

v.

Drullard,

79 Cal. 234, [21 Pac. 736], It is true that a like instruction was requested by the defendant in that case. The court added the words, “unless he was induced by the trick or misrepresentations of defendant not to make such inspection,” and as thus modified gave the same. The point involved was the action of the court in thus modifying the instruction, and its ruling was sustained on appeal. In no event could the instruction as requested be deemed proper under the circumstances disclosed by the record herein. There is a want of evidence tending in the slightest degree to prove that the means of information or knowledge concerning the property, or title thereto, was equally available to both parties, or that the subject of the purchase was equally open to inspection. Moreover, the representations consisted of statements of fact by one presumed to possess peculiar and accurate knowledge of the same. No duty devolved upon plaintiff to make, any investigation as to the truth of the statements. As said in