(185 P.) to him that the company held three patents [ company possessed a patent to the fan before on the nonelectric fan which the company he executed the note. He could have demandwas going to manufacture, and that the third patent covered all the others; that the 1,750 shares of stock were worth at least $2 per share, and would rapidly increase in value, and that in the course of a few years the stock would be worth "all the cattle that Landers had," it would enhance in value so much; that if Landers would keep the stock for one year at the end of that time he (Weber) would repurchase the stock from him for the price of $5,000, and that if Landers did not have the money on hand to take up the note when it fell due that he (Weber) would extend it from time to time. ed that the patent be produced, but the law will not deny him relief, although he may have been wanting in ordinary prudence in relying upon the representations of Weber concerning the patent. True, that in the ordinary business transactions of life men are expected to exercise reasonable prudence, and not to rely upon others with whom they deal to care for and protect their interests, but this requirement is not to be carried so far that the law shall ignore or protect positive intentional fraud successfully practiced upon the simple-minded or unwary. "As between the original parties, one who has intentionThe evidence tends to show that Landers ally deceived the other to his prejudice is not relied upon these representations in making to be heard to say, in defense of the charge the purchase of the 1,750 shares of the stock of fraud, that the innocent party ought not to of the company. The evidence further dis- have trusted him." Maxfield v. Schwartz, closes that the company had no patent for the 45 Minn. 150, 47 N. W. 448, 10 L. R. A. 606. fans proposed to be manufactured; that the It is argued that the defendant had full opstock was of no substantial value, the 1,750 portunity to examine the fan exhibited to shares in question having been sold at public him before he signed the note. This appears auction for not exceeding $20. Evidently to be true, but the fraudulent representations Weber had no intention of carrying out his related not to the fan itself, but to the promise, at the time he made it, to repur-patent, and concerned a material inducement chase the stock from Landers at the end of to the contract. Futhermore, partial invesone year for $5,000, or to make any extension tigation, and a reliance in part upon repreof the time for the payment of the note, sentations, does not preclude relief on the since the evidence shows that he at once ground of fraud. Freeman v. F. P. Harbaugh sold and transferred the note to the plaintiff Co., 114 Minn. 283, 130 N. W. 1110. and departed from the state permanently. We think the foregoing facts were sufficient to authorize the submission of the case to the jury upon the question of fraud in procuring the note had the suit been between the original parties only. Under the circumstances Weber could never have enforced the payment of the note, and if the plaintiff, Lentz, is not a purchaser in good faith and without notice of the infirmities of the note, he is in no better position than Weber. [6] As to the false representations of the value of the stock, it may be said that as a general rule statements as to the present or future value of corporation stock are mere matters of opinion, and do not constitute actionable fraud, although they may be false. But there is a well-recognized exception to this general rule. Where the party making the false representations as to the value of the stock has, or assumes to have, special knowledge as to its value, and knows that the other party is ignorant of its value, and is relying upon his representations on the subject, the false representations will be regarded as the statement of an existing fact and not mere opinion. 6 Fletcher, Cyclopedia Corp. par. 3868; Murray v. Tolman, 162 Ill. 417, 44 N. E. 748; Poole v. Camden, 79 W. Va. 310, 92 S. E. 454, L. R. A. 1917E, 988; Ohlwine v. Pfaffman, 52 Ind. App. 357, 100 N. E. 777. Weber was president of the corporation. He was in a position to know, and doubtless [3] Unquestionably the false representation did know, that the stock he was selling was that the company held a patent to the fan worthless. He must have known that Landproposed to be manufactured was the rep-ers was ignorant of the value of the stock, resentation of a material existing fact, and and was relying upon his statements as to was not matter of opinion merely. Spreckels v. Gorrill, 152 Cal. 383, 92 Pac. 1011; David v. Park, 103 Mass. 501; McKee v. Eaton, 26 Kan. 226; Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; Hicks v. Stevens, 121 Ill. 186, 11 N. E. 241. [2] The general rule is that any false representation of a material past or existing fact by either party to a contract for the sale of stock constitutes frand, if it is made with knowledge that it is false, or recklessly, without any belief in its truth, with intent that it shall be acted upon by the other party, and if it is relied upon by the other party to his injury. 6 Fletcher, Cyclopedia Corp. par. 3863; Moore v. Carrick, 26 Colo. App. 97, 140 Pac. 485. [4, 5] It is true that the defendant had an opportunity to ascertain whether or not the values. In such a case, it must be held that the representation was the statement of an existing fact, and not mere expression of an opinion. [7] It is contended by the plaintiff that fraud cannot be predicated upon the unkept promises of Weber to purchase the stock back from Landers within a year, at the price of $5,000, and the further promise to extend the time of payment of the note if Landers did not have the money on hand to pay when the note fell due. It is urged that these were but collateral promises, and not statements of existing facts. The rule of law upon this point is that, while a mere unfulfilled promise | will not furnish legal ground for avoiding a contract made upon the faith of the unfulfilled promise, nevertheless, when a party leads another into a contract by making him a promise he has no intention at the time of performing, such a promise constitutes a fraud, and for such fraud the contract entered into may be rescinded. Southern Loan & Trust Co. v. Gissendaner, 4 Ala. App. 523, 58 South. 737; Cerny v. Paxton & Gallagher Co., 78 Neb. 134, 110 N. W. 882, 10 L. R. A. (N. S.) 640. Doubtless the jury concluded that the defendant had fallen into the hands of sharpers and had been swindled, and, as we think, upon sufficient evidence. [8, 9] Fraud having been proven upon the part of Weber in procuring the note, the burden devolved upon the plaintiff to prove that he acquired the title to the paper in due course. Civil Code 1913, par. 4204; NavajoApache Bank & Trust Co. v. Wakefield (Ariz.) 180 Pac. 529; People's National Bank v. Taylor, 17 Ariz. 215, 149 Pac. 763. In order to bear this burden, the plaintiff was required to show by competent evidence: (1) That he became the holder of the note before it was overdue and without notice that it had been previously dishonored, if such was the fact; (2) that he took it in good faith and for value; and (3) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Civil Code 1913, par. 4197; Arnd v. Aylesworth, 145 Iowa, 185, 123 N. W. 1000, 29 L. R. A. (N. S.) 638. In the case last cited, the Supreme Court of Iowa said: "And to justify the court in directing a verdict in her favor the testimony of the bona fide character of her holder must not only be without substantial evidence tending to impeach it, but the showing in its support must be so clear and unequivocal as to leave no room for difference of opinion concerning it among fair-minded men"-citing authorities. [10, 11] Bearing the foregoing principles in mind, we take up the second question. The plaintiff was the only witness testifying to the facts of the purchase of the note by him. His testimony, in substance, was as follows: That Mr. Burt and Mr. Weber came to his office in Phoenix on November 21, 1916, and that Burt introduced Weber to him. That he didn't know Weber, and had not seen him before. That Weber wanted to sell him the note at a discount of 5 per centum. That he told Weber that he didn't wish to buy the have to borrow the money at the bank for that purpose. That Weber finally told him that he would take $2,500 for the note, if the deal was closed at once. That he told Weber that he would have to investigate the paper before he bought it, and that Weber referred him to Mr. George Babbitt, then stopping at the Hotel Adams. That he went to the hotel and saw Mr. Babbitt, and asked him about the paper, and that Babbitt said, “Yes, that paper is all right," and that he knew Mr. Landers, and that he would be glad to buy the paper himself, but that he had just closed some very heavy deals on a cattle ranch. That, coming out of the hotel, he met a Mr. Jones, who told him that he thought the paper was all right. That he also met Mr. A. J. Diamond, and asked him about the paper, and that Diamond said: "That note is all right. I am a neighbor of Mr. Landers, and I know that the note is all right." That plaintiff then returned to his office, and gave Weber the money for the note, paid him by way of a check. (The check for $2,500 was introduced in evidence.) That he sent a telegram to Landers addressed to Camp Verde, asking if he had executed the note to Weber for $3,500. That he could not recall whether it was before or after he bought the note that he sent the telegram, but he thinks that the telegram was sent on the day he bought the note at about the hour of 12 o'clock. That no answer was received to this telegram. That he closed the deal for the note at about 3 o'clock p. m. on November 21, 1916. That he knew nothing about the Nonelectric Fan Company at the time of the purchase, or the value of the stock at the time he bought the note. After this testimony was introduced, Landers was recalled, and testified that he got the telegram in Flagstaff several days after he had left Phoenix, and that he threw it away, as he thought that he had been "hornswaggled." A. J. Diamond was called, and testified that he met the plaintiff in his office during November, 1916, but that he didn't remember having any conversation with the plaintiff about the Landers note. That he had heard the plaintiff's testimony in regard to talking to him in the street, and that it might be possible that some conversation occurred between them at that time, but that he would not say that the plaintiff had showed him the Landers note, and asked him if that was Landers' signature. That he had no recollection whatever of seeing the Landers note, or of having any conversation with the plaintiff about the note. From the foregoing facts, and the reasonable inferences deducible therefrom, we think the good faith of the plaintiff in the purchase of the note was a question of fact for the jury. His good faith depended entirely upon his own testimony, except in the particular that he was corroborated by the production (185 P.) note. The courts in New York hold to the chase of the note was a vital question before doctrine that: "The mere fact that the witness is interested in the result of the suit is sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact, and that either a court or a jury is at liberty to disbelieve his testimony solely on the ground that he is interested." the jury, and if the jury, in view of the sus- Arnd v. [12] Several assignments of error are made, based upon the admission of certain testimony, but we do not consider these assignments as being of sufficient importance to require separate discussion. Fraud was charged, and it is a well-recognized rule that whenever a question of fraud arises in a case, the law permits a very broad range to be given to the testimony. Under the issues involved in the case, we are of the opinion that the court was without error upon its rulings upon the testimony. After a careful examination and consideration of the entire record, we do not observe any reversible error, and the judgment of the lower court is therefore affirmed. CUNNINGHAM, C. J., and ROSS, J., con cur. (21 Ariz. 129) BIG LEDGE COPPER CO. v. DEDRICK. (No. 1754.) Dec. 23, 1919.) GROUND FOR REVERSAL WHERE PROVOKED BY -as will be seen by reference to the many In action for injuries to employé, where counsel for employer in argument stated that defendant was practically broke, that a judgment against it would cause irreparable damage and practically put it out of business, statements by employé's attorney that "it is a matter of common knowledge in this state that every Corporation can protect itself by carrying liability insurance, and if this corporation wag negligent in failing to take out insurance, it was its fault," held not ground for reversal having been provoked by statements by counsel for employer. 2. TRIAL 129—ARGUMENT OF COUNSEl not GROUND FOR REVERSAL WHERE PROVOKED BY Improper language used in argument is not ground for reversal, where provoked by counsel for adverse party, unless it appears quite plainly that the verdict was influenced thereby, though language used would clearly authorize a reversal in the absence of such provoca 3. TRIAL 131(3)—OBJECTION TO IMPROPER REMARKS BY COUNSEL SUFFICIENT. Objection to remarks of counsel in argument to jury, specifying the remarks objected to, was sufficient to call for a ruling thereon For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes by the court, though reason for objection was not pointed out, where remarks could not be justified on any ground, except as retaliatory to remarks of counsel for adverse party. The appellee's counsel, charged with making the above statements, in an affidavit admits that he made statements in substance about as alleged, but excuses that matter on the ground that he was impelled to make the 4. TRIAL 133(2)—ADMONITION TO DISREGARD IMPROPER REMARKS BY COUNSEL IN- statements because the argument appellant's counsel had used goaded him, and in answer he became impatient, making the remarks in a moment of passion. The minute entry presenting the record of this incident is as follows: "Comes now J. A. Ellis, counsel for defendant, and interposes an objection to certain remarks made to the jury by P. W. O'Sullivan, of counsel for plaintiff, in his closing argument, and said remarks objected to, being in substance as follows: [Setting forth the middle paragraph above quoted; the first and third are added by affidavit]. Whereupon the court ordered the objectionable remarks entered in the record." The minutes further show that the defendant moved for a new trial "on the grounds of error in the argument of counsel for plaintiff," and appealed from an order refusing a new trial. The record is silent as to any request from any source for the court to admonish the jury and instruct the jury to disregard the said statements and give them no consideration in arriving at their verdict. The court, in the instructions, charged the jury to determine facts from a preponder O'Sullivan & Morgan, of Prescott, for ap-ance of the evidence, and kept the duty conpellee. CUNNINGHAM, C. J. The only questions presented by this record and urged on this appeal are the questions arising out of alleged misconduct of the attorney for the plaintiff, alleged to have occurred during such attorney's argument at the close of the trial Plaintiff's attorney, in his closing argument to the jury said: stantly before them. In finishing the voluntary charge of the court, the following language was used: every vestige of passion, bias, and prejudice, "It now becomes your duty to lay aside and fearlessly and impartially decide this case now submitted to you. Under your oaths, gentlemen, I charge you to carefully, conscientiously, and fearlessly consider this case solely upon the evidence presented and the instructions of the court, and to render your verdict without sympathy either for the plaintiff or the defendant" "It is a matter of common knowledge in this state that every corporation can protect itself by carrying liability insurance, and if this corporation was negligent in failing to-thus closing the instructions. take out insurance it was its fault. "It is a matter of common knowledge, where a man receives an injury, the corporation does not pay, as they are always protected by the liability insurance they carry. "It is a matter of common knowldege that every mining company of any consequence in this state carries liability insurance." It seems quite clear under the law that the trial judge was required to go no further than the record discloses he did go. His omission to admonish the jury to give no consideration to counsel's said remarks cannot be justly deemed error when, as seems to have been the case, the counsel objecting to the remark made no request for such admonition. If the The appellant insists: First, that the court erred in failing and refusing to admon-request had been made and refused, the reish the jury and instruct the jury to disresult would have presented a very different gard said statements and not to consider same in arriving at their verdict; second, because the verdict and judgment were excessive, and the result of bias and prejudice engendered by the remarks of counsel; and, third, the verdict and judgment was "based at least to some extent upon the said unsworn statements of counsel." case. "In most jurisdictions an objection or exception to improper arguments or remarks of sufficient ground for reversal on appeal, but counsel or other misconduct is not in itself the action of the trial court must have been invoked by a request to instruct the jury to disregard them, by motion to declare a mistrial or otherwise. When the court sustains (185 P.) an objection to remarks of counsel in argument, and no further ruling is asked on the subject, it cannot be urged on appeal that the remarks should have been ruled out or the jury instructed to disregard them." 3 Corpus Juris, 863, 864, and cases referred to in notes accompanying. The cases on this proposition are numerous. Strictly speaking, the record before us conclusively shows that the court in this instance sustained the defendant's objections to the improper remarks of the plaintiff's counsel and granted defendant's request by making the objectionable remarks a matter of record. No further or other action of the court was invoked at that time, nor at any other time until after a verdict was rendered in favor of plaintiff. The defendant duly moved for a new trial, and assigned as one ground for such motion the incident here under discussion. The court refused to grant a new trial, and the trial court must have considered the statements of counsel harmless after said statements were made of record. Consequently, entertaining such view, the motion was properly denied. On the whole case, I fail to see any certain prejudice to the defendant's case resulting even remotely from the objectionable statements. Certainly the statements of counsel did not add any strength to the evidence in support of the plaintiff's right to recover some compensation. The judgment is without error, and is affirmed. ROSS, J. (concurring). [1] I agree with the conclusion of the Chief Justice, but place it upon the grounds that the remarks of counsel for plaintiff were provoked by statements of counsel for defendant equally as foreign to the issue and quite as uncalled for. The latter in his argument to the jury said, in substance: "That defendant was practically broke; that a judgment against it would cause irreparable damage and injury; that it could not afford to be mulcted in damages; that the defendant company would be ruined, and practically put out of business, if a jury rendered a verdict against it in this case." [2] Counsel for plaintiff justifies his excursion outside of the record, and claims his remarks were made only for the purpose of counteracting the poverty plea made in behalf of defendant. To uphold such a contention may seem to reverse the old adage, "Two wrongs never make a right;" but at the same time it preserves the rule that forbids one from taking advantage of a wrong that he himself has provoked. "Improper language used in argument is not ground for reversal, where such language was provoked by the remarks of counsel for the adverse party, unless it appears quite plainly that the verdict was influenced thereby. * Moreover, the rule applies, although the language used would clearly authorize a reversal in the absence of such provocation." 38 Cyc. 1501. * The evidence is undisputed that plaintiff lost 87 days at the Humbolt Hospital, and at Phoenix 40 days under treatment-a matter of 127 days. The plaintiff lost a thumb and the partial use of fingers of his left hand. This seems to be a fair statement of the His thumb was amputated the first day he rule as generally recognized by the courts. was at the Humbolt Hospital, and he under- [3] I think appellant's objection to the rewent several additional operations for the re-marks of counsel for appellee was sufficient moval of fractured and crushed pieces of bone to call for a ruling thereon by the court. It thereafter. He testified to the pain and suf- was not necessary for him to point out fering accompanying his wounded condition wherein the remarks were objectionable, for and induced from said necessary treatment. they could not be justified on any ground exThe evidence, without dispute, shows that cept as retaliatory. The language used by plaintiff is permanently injured and is unable counsel for plaintiff would have been highly to operate a drill; because of the loss of his improper, in the absence of the remarks of thumb he cannot "turn the steel"-meaning counsel for defendant, and doubtless would that he cannot revolve the drill steel in the have been withdrawn from the jury by prophole being made for blasting the rock. With er directions, on objection thereto by defendthese elements of damage and loss to the ant, had not defendant's counsel been equally plaintiff before the jury, can it be fairly said guilty of going outside of the record in his that a verdict for $4,000 is excessive? address to the jury. The plaintiff claimed and was allowed twothirds of his claim of general damages, and no more. I can see in the circumstances no element of bias or prejudice entering into the verdict, in so far as the amount of the verdict was influenced thereby. It is the province of the jury to determine the loss within the evidence, and compensate such loss by their verdict, without bias, prejudice, or influence other than the facts deducible from all of the testimony in the case. Upon the face of the record, the jury has performed its duty properly in this case. [4] I do not think a general instruction that the jury try the case free from bias and prejudice and wholly upon the evidence was tantamount to directing it to disregard the remarks of counsel. Statements of that character should be specifically withdrawn from the jury, with proper admonitions, generally upon objection, and always upon motion, unless they were provoked, as in this case. BAKER, J. I concur in Judge ROSS' opin ion. |