Meech v. Malcolm , 88 Conn. 720 ( 1914 )

Forty of the reasons of appeal are predicated upon alleged errors of the trial court in finding or refusing to find certain facts. The defendant insists that none of these conclusions are justified by the evidence, which we have before us under § 797 of the General Statutes. We have made a careful examination of this evidence, and are satisfied that it discloses no substantial reason for any material alteration in the finding of the trial court. A part of the corrections and additions requested are of immaterial or evidential facts. Others concern matters as to which the testimony was so conflicting that the trial court was fully justified in the conclusions which it adopted, and the remainder were facts which appear, in substance, in the finding as made.

The controlling question presented by this appeal relates to the alleged fraud and misrepresentation which it is claimed induced the defendant to purchase the stock and sign the original note. The burden of proof upon this proposition was upon the defendant. The trial court has found that the defendant failed to sustain this burden, and has set forth in the finding the subordinate facts upon which it based this conclusion.

It is apparent from an examination of the finding that this conclusion is not legally inconsistent with the subordinate facts detailed in the finding, and that the decision of the court is not controlled by any erroneous view of the law. Therefore the motion to correct is denied.

This case is not affected by chapter 144 of the Public Acts of 1907, page 693, which provides a penalty for making false statement relating to the value of stock, bonds, or property.

The trial court has not found the allegations and claims of the defendant, that the sale of the stock was brought about by the false statements and representations of the payees in the original note, or by the false representations contained in the prospectus of the mining company; but, upon the contrary, it has found that the defendant acted in this matter upon information which he received from other sources as the result of his own independent investigation of the property and the affairs of the mining company.

The trial court erred in not allowing the defendant to cross-examine William D. Johnson as to his financial difficulties at or about the time that he and Randolph C. Andrus transferred the note in question to the plaintiff. The note was not taken in due course. When transferred to the plaintiff it was more than two years overdue. The plaintiff in his complaint alleged that he was the bona fide holder and owner of the note. The answer, in effect, denied this allegation. There was abundant evidence to sustain the finding of the court below that the assignment was made in good faith and for a good consideration. It is not claimed that there was any fraudulent intent upon the part of Meech, the plaintiff, or that he had notice of any such intent on the part of Johnson. From the facts and circumstances disclosed by the record, it is clear that this ruling, even though erroneous, was harmless.

A material question in the trial of the case was whether the defendant understood the terms and conditions of the contract for the purchase of the property by the Four Metals Mining Company. In this connection the plaintiff offered the deposition of Randolph C. Andrus, one of the original payees of the note. This deposition was taken in San Jose, California, when and where the plaintiff and defendant were both represented by counsel. By this deposition it appears that Andrus testified as follows: "I don't know whether he saw the agreement itself, but he was certainly conversant with the terms of it, for I told him, and every one here. . . . Q. And are you sure he was familiar with the contract between the Four Metals Mining Company and the Great Western Ore Purchasing and Smelting Company? A. Yes, sir."

This testimony was given without the objection or exception of the defendant when the deposition was taken. Objection was made and an exception taken to the admission of this evidence in the trial of the case before the Superior Court. Such testimony is not evidence of a fact. At the most, it is merely the opinion or conclusion of the witness, and ordinarily it cannot have any legitimate bearing on the question to be decided. The admission of this evidence under the circumstances appearing in the record is not a sufficient ground for a new trial. The familiarity of the defendant with the terms and conditions of the contract was satisfactorily proven by other testimony upon the subject.

It appears from the deposition, which was made a part of the finding, that the witness Andrus also testified, in relation to this matter, that "I couldn't say that he did. . . . If he didn't, it was his own fault."

It is apparent that the trial court was not misled upon this point, and that it did not place undue reliance upon the testimony given by Andrus in his deposition.

The remaining reasons of appeal involve no questions which call for discussion.

There is no error.

In this opinion the other judges concurred.