Fitz v. Bynum

Myrick, J.: The jury rendered a verdict for defendant. Plaintiff moved for a new trial, which was denied, and plaintiff appealed.

Whether the stock, the sale of which was the consideration for the notes in suit, was of value, was a matter properly submitted to the jury: as to this issue, the evidence was conflicting; [461]therefore the verdict of the jury will not be disturbed. The Court clearly instructed the jury that if the stock had any value, the defendant must have offered to return it, or the plaintiff would be entitled to a verdict. The verdict, therefore, was necessarily based upon the belief on their part, from the evidence, that the stock had no value. The question of market value of the stock does not arise in this case. It does not appear that the stock had market value as such. The sales made appear to be only such as the operators could induce their neighbors and acquaintances to take, at prices ranging from fifty cents to a dollar a share, as purchasers could be found. As the witness Strong said: “The stock that I sold, [10,000 shares] I sold for about six bits up to a dollar, ninety cents the most of it, and some at four bits, to elders and preachers. That I gave out of my own pocket to them. I told them so at the time.” Such transactions do not appear to us to give market value to the property sold; but, rather, transactions made in order to give an apparent market value. The price of one dollar per share placed on the stock by the trustees was altogether arbitrary.

It was not error in the Court to sustain the objection to the question put to the witness McCleery, as to what the ore might have yielded under some other possible circumstances. The question in controversy was whether the stock had value as the mine then was.

Judgment and order affirmed.

Sharpstein, J., and Thornton, J., concurred.

By the Court (in bank, on petition for rehearing) : This case was heard in Department 2 of this Court, and opinion filed August 18th, 1880. Application is made that the case be heard by the Court in bank. In addition to the facts stated in the opinion of the Department, the transcript shows that the defendant, in his answer, alleged that the payee of the note in suit induced defendant to execute the note by fraudulent and false representations as to the value of the mine and its stock, and that the representations were made for the purpose of cheating and defrauding defendant; that he represented the mine and its stock to be of great value, and that $10,000 worth of ore