Homan v. Ammen ( 1911 )

DUFOUR, J.

The plaintiff sues to rescind the sale of fifteen shares of stock of the Ammen Co. Limited,, at. $110 per share, on the ground that Ammen falsely represented .to him that the shares had that value and ha was induced by that representation to make the purchase:

Human states that Ammen made false representations, and had handed him a statement of merchandise on hand which was excessive to the extent of $2000.

Ammen denies making any representation or showing any statement of the status of merchandise at the, time the stock was bought, and says that he did not suggest the purchase to Homan, who bought of his own volition.

The conflict between the two is unreconcilable, and it. is clear from the judgment that the district judge accepted the' version of the defendant.

Counsel for plaintiff urges in this (court that “under all probabilities of the (case, the Statement of Homan is correct and the statement of Ammen incorrect.”

We think differently.

The burden of proving the representations and their falsity is on the party who seeks the rescission of the contract.

Homan's sole basis for his claim' is that he found a discrepancy in the amount of merchandise carried in the ledger and that (carried in the merchandise or stock hook.

He does not venture to say which of the two hooks, if either, is correct or what amount of stock was on hand.

He became a member of the hoard of directors about four months after becoming a stockholder and had' the same opportunity of investigating the hooks and stock and securing available evidence as was possessed by the defendants.

His failure to produce any, suggests that he found none, and to sustain his demand would be to base a judgment on vague inferences.

May 15, 1911.

Judgment affirmed.