Gamble v. Tripp
Before: Belcher
Synopsis
Bmi, of Exceptions—Genebal Specification of Insufficiency of Evidence— Conflicting Evidence.—Where the only specifications in a bill of exceptions, as to the insufficiency of the evidence to justify the findings, are “ that the court erred in finding that the allegations of the plaintiff’s complaint were true, and all the denials and allegations of the defendant’s answer were untrue, inasmuch as the testimony does not disclose such a state of facts,” and “ that the findings are not borne out by the testimony, fraud, and misrepresentation in law having been proven by the defendant and his witnesses,” such specifications are insufficient to meet the requirements of the code, and the findings cannot be reversed on that ground; neither could they be reversed where the evidence is conflicting, and there is evidence to sustain the findings, even if the specifications were sufficient.
Note Given fob Shanes of Stock—Eraud—Rescission—Restitution.—Where the consideration of a note is shares of stock in a corporation, which the maker of the note alleges that he was induced to purchase by fraudulent representations of the payee, and it appears that the shares of stock had a market and supposed real value at the time of the sale, the maker of the note could only rescind his contract by doing so promptly upon discovering the facts entitling him to rescind, and by restoring or offering to restore to the payee of the note everything of value received under the contract.
Id.—Delay in Rescission.—Wherein an action on the note, rescission of the contract was sought by the defendant in his answer, and the court found that no offer of rescission was made until after the commencement of the action, and it appears that more than four and a half months elapsed between the time of the defendant’s alleged discovery of fraud and his offer to rescind, he is barred of rescission by the delay, in the absence of an excuse shown therefor.
Belcher, C. On the twenty-ninth day of July, 1875, the defendant, Dwight K. Tripp, executed and delivered to the plaintiff his promissory note for $5,886, payable sixty days after date, with interest at the rate of one per cent per month from maturity until paid. The consideration for the note was the sale by the payee to the maker of 2,140 shares of the capital stock of the Western Savings and Trust Company, a corporation organized under the laws of this state, and doing a banking business in the city and county of San Francisco; and to secure payment of the note, the certificates of the stock were left with the said company in pledge for the plaintiff.
On the 15th of February,.1876, the plaintiff commenced this action to recover the amount due on the note, and to obtain a decree directing the sale of the said stock and the application of the proceeds of the sale to the payment of the judgment.
On the 29tli of the same month, the defendant Tripp filed his answer to the complaint, alleging that to induce him to purchase the said stock and for the purpose of defrauding him, the plaintiff made to him certain representations and statements as to the condition and affairs of the said company, Avhich were false, fraudulent, and untrue, and known by the plaintiff to be so at the time they were made, and that relying upou such representations and statements he Avas induced to purchase the said stock and in payment thereof to execute the said note; and also alleging, “that as soon as he became fully informed of the condition and situation’ of the said Western Savings and Trust Company, and of the false and untruthful and fraudulent statements of the said plaintiff, he notified him thereof, and offered to surrender and deliver to him the said 2,140 shares of stock, and demanded the return of said note given therefor, [225]revoking and rescinding his said agreement”; and the prayer was “ that the contract existing between defendant and plaintiff sued upon be rescinded, and that the said plaintiff be ordered to surrender said note to this defendant, and that the said co-defendant, Western Savings and Trust Company, be directed to surrender and deliver to said plaintiff the said 2,140 shares of stock,” and for general relief.
The case was tried in December, 1891, and the court, among other things, found “that all the allegations and averments of the plaintiff’s complaint are true, and all the denials and allegations of the defendant’s answer are untrue; that the plaintiff did not at or before the making and delivery to him by defendant of said promissory note, or ever, make to the defendant any representations or statements which were false, fraudulent, or untrue, or made for the purpose of defrauding the defendant, or that the defendant was induced to or did rely upon such alleged false and fraudulent representations or statements in respect to said Western Savings and Trust Company, or any or either of them; that the defendant after the commencement of this action, and not before, offered to rescind said transaction and to return to plaintiff said 2,140 shares of said capital stock of said company, and demanded the return to him of said promissory note”; and as a conclusion of law that the plaintiff was entitled to judgment as prayed for in his complaint.
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