Opinion
No. 4432.
November 9, 1933.
Appeal from District Court, Fannin County; A. L. McRae, Judge.
Suit by J. T. Kershner against Aug S. Guillot and another. From an interlocutory order overruling his plea of privilege, named defendant appeals.
Affirmed.
The appeal is from an interlocutory order overruling the plea of privilege of appellant to be sued in Dallas county, his residence and place of business.
The appellee brought the suit in Fannin county against appellant and one Culver, alleging the residence of appellant to be in Dallas county and the residence of Mr. Culver to be in another county. By the suit a judgment was sought against the defendants, jointly and severally, for damages for fraud inducing the exchange of corporate stock, alleging the fraud was committed in Fannin county.
It appears that the plaintiff owned eighty shares of stock in the Amicable Life Insurance Company, each of the par value of $25, and of the market value at the date of the transaction in suit of $15. He was a man eighty-eight years old, and very nearly blind. In July, 1932, Mr. Culver, purporting to act for the defendant Aug S. Guillot, went to the farm residence of the plaintiff in the view and purpose of effectuating a sale to him as an investment of certain corporate stock. Upon a final agreement of sale being reached, the plaintiff at once assigned and transferred his stock in the Amicable Life Insurance Company and executed and delivered his personal check for $500, which check was promptly paid by the bank on which it was drawn. Several days afterwards the plaintiff received in the due course of mail a letter purporting to be signed by defendant Guillot and containing twenty-five shares of the Ford Motor Company of Germany, located at Berlin, of the market value in currency of the United States of $8 per share at the date of the agreement. The letter recited that the stock was sent in "full and complete execution." of the agreement. It is claimed by plaintiff that in the circumstances and in the forwarding to him of stock in the Ford Motor Company of Germany he has sustained an injury and loss through fraud, in falsity of statement and representation, in that it was affirmatively stated and represented that stock in the Ford Motor Company of Michigan was the stock to be forwarded and delivered to him in the exchange and sale, and that the stock to be delivered was of the market value of $100 per share, and the dividend thereon of 20 per cent. was being paid; that stock in the Ford Motor Company of Germany was never mentioned nor contemplated to be delivered, and the seller never divulged the fact that he was trying to sell or exchange stock of that company.
The controverting affidavit filed to the plea of privilege, after express reference to the plaintiff's original petition filed in the cause, specially set out at length the alleged fraudulent facts and the place the fraud was committed. It was alleged in the controverting affidavit, stated in substance, that Mr. Culver "acting for himself and as the representative of the said Aug S. Guillot came to the farm in Fannin County, about fifteen miles northeast of Bonham, Texas, on which the said J. T. Kershner resides, and there represented that he had procured some stock in the Ford Motor Company of Michigan which he would like to sell the plaintiff. * * * That the said Aug S. Guillot had been fortunate enough to secure a limited amount of this Ford Motor Company stock and that he could let the plaintiff have some of it if this plaintiff could arrange to take it. That the said Culver urged the plaintiff to trade his Amicable Life Insurance Company stock for the said Ford Motor Company stock, saying that it was a much better investment and would pay much higher dividends. That the said Culver represented to this plaintiff that the said stock was hard to get, and could not easily be bought and that if the plaintiff did not purchase some of the stock on that date and at that time, he would probably never have the opportunity to do so again, as prominent, influential and wealthy men were making every effort to get hold of some of the stock. That the said Culver represented to this plaintiff that the said Ford Motor Company stock was worth far more in excess of his stock in the Amicable Life Insurance Company. * * * That he gave his check for $500.00 to the said Culver and transferred his said eighty shares of Amicable Life Insurance Company stock, with the distinct understanding that he was to receive therefor twenty-five shares of the Ford Motor Company of Michigan stock. * * * That in a few days afterwards he received through the mail from the said Aug S. Guillot, Dallas, Texas, twenty-five stock certificates or bonds with coupons in Ford Motor Company, A. G. Berlin, the said certificates or bonds bearing the serial numbers 94901 to 94925, inclusive." It was further alleged: "That said Culver did not mention the fact that the Ford Motor Company or any other Ford Motor Company had stock in any factory or corporation in Germany, and that the words German or Germany were not in any way alluded to or mentioned in the conversation by plaintiff or the said Culver. * * * That in truth and fact the stock which he, Culver, was attempting to sell and later which he did send to plaintiff was stock in the Ford Motor Company located at Berlin in Germany, and which stock was of very little value. * * * That he immediately got in touch with his attorney and the bank and tried to stop payment of his check, but was informed that the check had already been cashed, and the stock transferred and passed into the hands of innocent purchasers. That the transaction was a fraud and a swindle," etc. The appellant did not testify, and he offered no evidence upon the hearing.
William F. Bane and John C. Read, both of Dallas, for appellant.
Couch Couch, of Bonham, for appellee.
It is believed the point made on this appeal may not be sustained that the evidence wholly fails to show that any fraud was perpetrated, even prima facie, by either of the defendants. As stated in Kerr on Frauds and Mistakes; "Fraud is so various in form and color that it is difficult, if not impossible, to confine it within the limits of any precise definition." Fraud in law is what the law condemns from all the facts and circumstances surrounding a transaction: generally, an act or course of deception, deliberately practiced with a view of gaining a wrong or unfair advantage. As claimed by the plaintiff in the controverting affidavit, he was induced to and did give his check and exchange his corporate stock in the Amicable Life Insurance Company upon the affirmative statement and representation of Mr. Culver, purporting to act for appellant, "that he was selling stock in the Ford Motor Company and manufacturing plant located in Michigan * * * with the distinct understanding that he (plaintiff) was to receive therefor twenty-five shares of the Ford Motor Company stock in the Michigan Company." The pertinent evidence in behalf of the plaintiff only need be referred to briefly.
The wife of the plaintiff testified:
"Q. Just tell what you heard them (plaintiff and Culver) say. A. Well, Mr. Culver came to our house, and came in and took a seat. Almost without saying much he says, `Well, it is useless for me to say I am selling Ford stock. I met a friend of yours and he told me he wanted me to come out here and offer some of it to you.' Mr. Kershner was laying on the couch at the time and he raised up and set up and says, `Ford stock, do you mean Henry Ford?' He says, `There is only one man when we say Ford by that name recognized in the business world.' Mr. Kershner and him talked on about Mr. Ford and the way he carried on his business," etc.
The plaintiff testified:
"Q. Just tell the court all the conversation that took place between you and the man (Culver). A. He came in the house and he sit down in a chair. He says, `No need to ask questions about Ford stock for everybody knows it is all O. K.' I says, `Henry Ford?' he says, `Yes, there is but one Ford in this wide world, and I am selling shares at $100.00 a share, and the last dividend they paid was 20 per cent.' I says, `Up here in Michigan?' and he says, `Yes.' Right there I took hold. * * * I just thought, Why, there was something grand. There was not anything said about any activities of Mr. Ford in Germany. Germany was not named. If I had known Mr. Culver was there to sell Ford of Germany bonds I would not have fooled with them two minutes. I would not have bought stock or bonds in Mr. Ford's German Corporation. * * * All this talking was in Fannin County, and these bonds came by mail to me at my home in Fannin County. * * * I was to get for my stock in the Amicable Life Insurance Company and the $500.00 Ford stock of the worth of $2500.00," etc.
Although the proof of the representations and statements made is not in the exact language of the representations as they are set out in the controverting affidavit and petition, yet it may not be reasonably held there is no proof in substantial conformity to the allegations. The trial court was authorized to conclude, as presumably he did, that the seller by persuasive statements in evidence, and by the withholding of the material fact of the true Ford Corporation issuing the corporate stock which he was actually endeavoring to sell, had sown the seeds of confidence in the mind of the plaintiff that he was procuring stock in the Ford Motor Company of Michigan, accomplishing the fraud complained of. At least a prima facie case appears, as respects a plea of privilege, supporting the alleged venue or county of trial of the case. This case is quite unlike in facts the case of Neyland v. Benson (Tex.Civ.App.) 292 S.W. 251.
This present ruling is intended to be limited to the plea of privilege, being based entirely on the evidence in behalf of plaintiff.
The interlocutory order of the trial court is affirmed.