Etienne v. Kendall

THE COURT.

This cause was transferred to the supreme court after decision and judgment in the second division of the district court of appeal of the first district, on petition of the appellant, who. contends that the decision is in error in holding, first, that the representations made by the defendant were merely statements of his opinion, and not of facts, and, second, that the plaintiff treated the answer of the defendant as raising an issue as to the falsity of the representations charged. Upon a further consideration of the matter we are satisfied that under the facts of this particular case the opinion written by Mr. Justice Nourse, and concurred in by Mr. Justice Sturtevant and Mr. Presiding Justice Koford, disposed of those matters correctly.

The opinion is, therefore, adopted as the opinion of this court.

“Plaintiff sued for the rescission of a contract for the purchase of shares of stock in a mining corporation, alleging fraudulent misrepresentations as an inducement to the execution of the contract. Judgment went for the defendant and the plaintiff has appealed upon a hill of exceptions.

“The complaint alleged that on November 21, 1921, the plaintiff and the defendant entered into a written agreement wherein the plaintiff agreed to purchase and the defendant agreed to sell 250,000 shares of the capital stock of the Consolidated Virginia Mining Company, a corporation,

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for the total purchase price of $152,005; that upon the execution of the agreement the sum of $20,822.25 was paid by the plaintiff to the defendant in cash and at the same time plaintiff delivered to the defendant his promissory note for the balance, secured by the shares of stock covered by the purchase and also by other collateral; that for the purpose of inducing the plaintiff to enter into said agreement the defendant represented to him that the said corporation ‘contained known ores and minerals and ore bodies situate in the so-called “Old Bonanza Stopes,” in said mine, and between the 1500 and 1600 foot levels, in said mine, amounting to 2,000,000 tons of ores and minerals, that were valued at from $20 to $25 per ton; that all of said ores, minerals and ore bodies, could be mined, extracted, and reduced at a cost of not exceeding $3.00 per ton’; and that within a very short time thereafter the stock of said corporation would greatly increase in value and large dividends thereon would be paid; ‘that the representations so made, by the defendant, to the plaintiff, as aforesaid, were and are untrue, and were then known to the defendant to be false and untrue, and the said representations were fraudulently made, by the defendant, with the intent to mislead and deceive the plaintiff, and to induce him to enter into the agreement, aforesaid’; that the plaintiff, believing and fully relying upon said representations, was induced to enter into said agreement because of them; that the plaintiff did not discover the falsity of said representations until about July 30, 1923, and that upon discovering the facts which entitled him to rescind said agreement he immediately gave notice of rescission thereof to the defendant; that the defendant for many years past has been a stock broker and engaged in the business of promoting, operating and dealing in mining properties, but that the plaintiff was practically unfamiliar with the business of mining or the manipulation of the stocks of mining corporations. The answer alleged that for some time prior to the execution of the agreement the plaintiff had become interested in the purchase of mining stocks of corporations operating in the vicinity of the Consolidated Virginia and had urged the defendant to sell to him some of the stock of the latter company believing that because of renewed activity of operations in that locality the stock of the Consolidated Virginia would enhance "in value; that the