Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-10-10


he must come prepared with proofs.
So, too, in other cases, however widely the
facts may differ in detail, if their general effect
is the same and the Court is able TO see beyond
all question that the defendant has not been
misied to his injury, plaintiff may recover
Generally, in this class OF cases, the pleadings
should be amended before the evidence Is
closed but in no case viii the Court ever find a
decree upon the finding of Il fact which II can
not see was understood by all parties to be
fact in issue or was admitted. Certainly it
would be most unjust to permit plaintiff, after
the testimony has been closed, without hint of
such claim to work out from the evidence en-
tirely different therein from those stated in the
complaint as the ground of liability on the part
of the defendants. Especially would that
course be in a case of this character, where the
mass of testimony is sosgreat and was admitted
upon so many issues which were made in the
pleadings
PLAINTIFFS counsel claimed that evidence of
other facts is admissible if they tend to establish
the plaintiffs right to recover in its general
scope and meaning. OF course, if ether facts
tend to prove the allegations they are admissi
BILE.
Otherwise do not understand the contention
unless it be meant that evidence will be re-
ceived if it tends to prove any fraud in the i'm
peached transaction. This would entirely do
away with the rule, now well established, that
the plaintiff must state the specific facts upon
which it relies must point out the acts which
he claims are fraudulent the duty which has
been violated and the particular breach of it,
Nay, he may in hiscomplaint state facts which
may rely upon a totally different case
The fact that as rule of evidence the burden
of proving fair dealing is on the defendant does
not affect the rule of pleading.
II rather increases the necessity of having the
breach of duty upon which the plaintiff relies
specifically pointed out. PERHAPS the ingenuity
of counsel may now discover in this record many
facts which it was material for plaintiff to
know and which it is not proven she did know.
II would be hard measure for defendant to be
required, on the argument, for the first time to
show that he disclosed facts concerning which
at the trial there was no alleged derelicton and
no hint of materiality or ignorance.
There never was case-there could hardly
arise one-where the rule would work more
harshly than in this very case.
THE W. b. co. DIVIDEND.
Take, for instance, the matter of the dividend
of the Western Development Company.
The complaint charges defendant with falsely
representing this corporation as insolvent that
a certain stock and bond dividend had been i'm
properly declared, and would be revoked to en-
able the company to pay its debts.
That defendants would return their dividends,
and plaintiff would be required to do So
The answer AYERS that the dividend was i'm
properly declared, there being no surplus on
hand TO divide. That, finding it had been done
by Cotton. defendants insisted that the resolu-
ton should be revoked, but finally consented
that It might stand, under promise of each to
the others that in case any or all of the bonds
should be required by the company they would
return them. | have been unable to find after
considerable search in this immense record.
that anything was said by counsel or witness
which would indicate that plaintiff claimed
that this agreement would show the existence
OF fiduciary relations, much less that any
claim to relief, was based upon a failure to
communicate the fact of this agreement 10
plalntlh. am convinced that during this
long, wearisome trial no word was uttered by
way OF complaint that Wilson or plaintiff were
ignorant of It, Plaintiff, when on the stand,
was asked a great many questions, which
with the answers, fill many printed pages
whether she knew this thing or the other before
she signed the contract.
Naturally, counsel would expect to find here
what she claimed to be fraudulent conceal
ments, especially if there were any such mat
tiers not in her complaint | do not find this
matter there alluded to.
1t seems plain that, until the evidence was
closed, defendants attorneys did not suspect,
and had no reason to suspect, that any import
ance was attached to the question as TO
whether this fact had been disclosed
On the argument however, plaintiffs coun-
sci insist and urye with great force that the
failure to communicate this fact was such a
breach of duty as of itself should compel the
Court to decree for plaintiff
The case IS all the worse from the fact that
no one could read the evidence understanding
| that there was no issue upon this point and moi
| be satisfied that both Wilson and the plaintif
| knew all about it. While if read with The idea
| that the matter was in issue, the proof might be
insufficient to establish the fact. Certainly
on this issue the defendants have had no day
| in Court.
| LATITUDE IN ADMITTING EVIDENCE.
| But it is said that the fact is averred in the
| answer. But the answer contains no state
ment as to whether plaintiff settled in Ignorance
OF the TACT, nor Is there anything there TO sug
| gest an issue upon that question.
The matter of the unpaid subscriptions, 81
| far as concealment is concerned is in the same
condition, but think that evidence admissible
speak.
AS already suggested, there never was. to m,
| knowledge, q case in which Justice required the
rules OF pleading to be more strictly enforced
| In few eases ii in any, have there been so man,
| issues OF fact, or has there been so much testi
| mony. The door was opened very wide fer tht
| admission of evidence.
| Plaintiff was allowed to show a Dartnershin n,
| other iduciary relation from the manner O
| doing business. In this way nearly all the i'm
portant transactions of the defendants and of tn,
| corporations which they controlled, becam,
proper subjects of investigation How few anC
| simple, comparatively. were the issues on tn,
cases cited here by plaintiff as authority for In
Court Go. # TO DISREGARD the pleadings and to ente
| the judgment which the evidence NAV warrant
| upon any possible theory of facts which the i'm
| genuity of counsel may devise
In Place VS.. Minister, 65 N y there was
variance as to the details of the conspiracy |
| turned out that sale was made to one Sher
| lock, who was to convey to defendants insteat
| of TO L. Minister, as alleged. 1t was not really
| variance, even as to the conspiracy but only a.
! to the details of the plan of carving it out.
| made no difference whether the person select
| ed to pose as an innocent purchaser was one o.
the other.
1t was such an inaccuracy as could not mis-
| lead. The facts were few. comparatively
| such was the case in the other authorities
| The Court would easily see whether the partie.
| had really tried the issues upon which The
| Judgment was finally based. Here the eyidenc,
was admitted as relevant to other issues The
| Court cannot say that defendants would hay,
had no further proofs had they apprehended thC
| full extent of plaintiffs claims
| I evidence a5r
| are called the omitted assets of the Western
Developement Company, as the peadings stand
| 1t is charged that defendants represented tha
| company to be insolvent and unable TO nav if,
| debts, without return of the dividends. Tbi,
! Is averred to be Misrepresentation The eyi
| dence was clearly relevant. This is a Gistine
issue from the charge of concealment and from
| the charge that Elk. f. was presented as per
| feet inventory and appraiSement of all the
| assets of that company; and that plaintiff there
upon compromised supposing that she knew
what property she was selling. Treated as ;
coneealment or Il misrepresentation as to wha
the assets consisted of, it was incumbent upoI
the plaintiff to specify. But the question o
| solvency was different issue, and moreove
was, IN my opinion, one of the very importaD
questions Of fact in the case. The fact that tbi
| evidence was properly admitted for other pur
poses cannot, however, enlarge the scope of tht
| avermentS in the complaint and the proof
must be considered solely in reference to tn,
| issues there made and rendered.
ALLEGED NEUTRALITY-SUSPICIOUS..
After stating facts calculated to show the re
| lation of the parties and the character of tn
business in which they were engaged tn,
complaint proceeds to charge various misreu
resentationsmade to deceive and defraud tn,
plaintiff, VIZ
First. Cotton was indebted to the Rock,
Mountain Coal and Iron Company in the s1In
of SlS1, 500 80, for money fraudulently approprj
ated and embezzled.
| Second. He was indebted to the Western De
velopment Company in the sum of S26. $50 u. 70
| money Y orl
| third. That the Western DEVELOPMENT Com
pany was insolvent and unable to pay its debts
Fourth. That Cotton had caused the Wester
Development Company to improperly declare
stock and bond dividend without the knoWl
edge of defendants and that it was necessar
TO recall this dividend to pay the debts of tn
corporation, and that the defendants would RI
turn theirs
Fifth That 40S shares of the stock of the
NJ. C. and !. Company in her possession did no
belong TO the estate of Cotton, but were held il
! trust by defendants and Mark Hopkins estate
and upon their paving the cost price they wer
entitled to-an assignment of such stock.
| sixth. That the value of the stock and bond
received by her from her husbands estate am
the stock pledged to pay Coton's note for on
mlillon dollars was insufficient to pay Cotton
indebtedness to the K. NJ c. and /. Company
ana ms snare OF the Indebtedness of the w ID
Hopkins. VI -
Seventh. That Cotton had commenced rob
blng them from the first day he was eonnecte,
Eighth. They presented Exhibit D. as marie,
IN the complaint as a true statement of CoIton'
liability TO the corporation named for such mis-
auDrODriqfiOng - 49,