Bailey v. Yosemite Portland Cement Corp.

CRAIG, J.

From a judgment rendered in favor of the plaintiff the defendant appealed, assigning certain findings of fact as unsupported and erroneous.

The plaintiff alleged that the defendant and its agents intending to deceive and defraud her represented that said company was earning dividends of eight per cent, that its stock was worth and was selling generally on the market for $10 per share, that its stock would be listed by it upon the stock exchanges and would for said reasons be worth on a stated date $15 per share. The trial court found that said defendant did by and through its agents represent that said stock “was selling on the market at $10.00 a share and that the said corporation was actually earning 8% dividends” at said times. It is contended that the evidence was insufficient to justify a finding of representations that said stock “was selling on the market for $10.00 per share”, and that the further finding of a representation

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“that the said corporation was actually earning 8% dividends on said stock at said times” was outside the issues.

The latter finding would seem to amount to no more than an interchanging o£ words used in the complaint to express the same representation and intent. By a deposition of the plaintiff taken on behalf of the defendant pursuant to stipulation, in response to questions propounded by the defendant’s counsel, she testified, among other things, that when representatives of the corporation importuned her to purchase said stock she was informed that “my 8% would commence from the date of the issue of the stock. He told me I had better make a reservation for more shares, as the stock was selling fast and would soon be sold out”; “he told me I would receive my interest from the date of the issue of the stock, that it was actually sold on the market for $10 per share”; “that the stock, the present stock at $10 per share was nearly all sold; that they had only a small share of it left and the first of August it would be listed and put on the market and sold at $15 per share at the regular price”; “yes, I am sure, because I had them explain fully what they meant, and he said it is not listed now, ... It would not be listed until the 1st of August, and stock would be sold out by the last of the month, meaning August”; “Q. He said he thought by the 1st of August they would have sold all the stock? A. He said he knew.” In other jurisdictions it has been held that the plaintiff may treat allegations of misrepresentations as divisible and may succeed if he can prove any one of them which of itself makes a cause of action, but that “it is also true that the plaintiff might recover although he did not prove the misrepresentations precisely as laid