Browne

In this action respondent secured a judgment enforcing rescission of a contract for the sale of corporate stock. The cause of action was based upon the alleged fraudulent representation made by the agent of the corporation that the stock was “nonassessable.” The appeal is from the judgment and from an order denying defendant a new trial.

The trial court found that the representation had been made as alleged, and if there was any evidence presented which would sustain that finding, it must here be assumed to be correct, for in such a condition this court has not the duty nor privilege of weighing the proof. The sale of defendant’s stock was made through the vice-president of the corporation. The only substantial evidence of any representation as to the nonassessable quality of the stock was furnished by the testimony pf respondent. He testified that a man named Peck, who appears to have been respondent’s agent in negotiating for the purchase of the stock, told Mm that the shares were nonassessable. If the proof had stopped theré it would not have been sufficient to establish the charge that the alleged false representation had been made by any one acting for the corporation. But…

I dissent from the order denying a rehearing and from the judgment. This is one of the least meritorious of a class of actions with which the time of the courts would never be taken up if parties of mature age, sui juris, and dealing with others at arm’s length in ordinary business transactions, would only take the most obvious precautions for the protection of their own interests, a class of actions—it may be added— by which a fraud may be perpetrated as easily as the fraud alleged may be redressed. The decision of this cause, in my opinion, makes a mischievous precedent in two ways; it encourages the parties to similar transactions to neglect without excuse the precautions which would keep them out of trouble, and it opens the door to the prosecution of actions for rescission based upon false claims of misrepresentation. It well illustrates the soundness of .the policy upon which many decisions of this and other courts have been based in denying relief to vendees of real property who have neglected, without excuse, to avail themselves of easy access to sources of perfectly trustworthy information as to facts upon the alleged misrepresentation of which they have afterward claimed…