Douglas v. Duvall

304 P.2d 373, 5 Utah 2d 429, 1956 Utah LEXIS 128

• Court: Utah Supreme Court
• Decided: December 6, 1956
• Docket: 8484
• Status: Published

Opinions

HENRIOD, Justice.

Appeal from a verdict favorable to defendant in an action allegedly bottomed on false representations which induced plaintiffs to make six loans between 1950 and 1952 to a mining company whose president was the defendant and one of whose directors was one of the plaintiffs. Affirmed with costs to defendant.

The alleged representations concerned blocked-out ore, potential production, profits, costs and the like.

Plaintiffs’ brief recites the facts most favorable to themselves, losers below, which facts were sharply controverted, — an approach this court does not accept.¹ The factual scene here, as reflected in the record, required submission of the case to the jury, there being sufficient substantial competent evidence which, if believed, would sustain the verdict and preclude us from disturbing it.²

Significant facts which support such conclusion included an inspection by plaintiff, prior to any loan, of a competent engineer’s report and map showing the mine’s location, drilling data, estimated tonnage, production costs and ore values, the facts that defendant jointly lost financially along with plaintiffs and others, that plaintiff was a director of the company, that the loans were made to the company, and not to defendant, and were evidenced by corporate notes, that plaintiffs made no demand for payment at or after maturity, that loans were made after previous loans had matured, that the mine produced 113,-000 tons of ore, albeit without profit, that engineers and managers were employed, all of which, however, netted a loss for everyone who had contributed to the venture.

Although the venture was most unfortunate and costly for plaintiffs, the defendant and others, it was one that a jury well might find to have been free from fraud, and one which a reasonable person could have avoided through reasonable inquiry, particularly if he had been a director in the company, and one in which any fraud by way of false representation could have been detected upon reasonable inquiry.

Plaintiffs urge that the court erred 1) in submitting the cause on interrogatories, which are allowable under our rules, 2) in giving prejudicial instructions to the jury, with which contention we disagree, 3) in prejudicially commenting on the 'evidence, which appears to us to have been but a discourse outlining the reasonable duties of directors, phrased, perhaps, somewhat in the vernacular, and 4) in failing to direct a verdict for plaintiffs, which could not have been done, in our opinion because of the controversions in the evidence, — all of which objections we deem without merit for the reasons assigned

Lastly, plaintiffs complain of the court’s refusal to permit counsel to read to the jury at some length from a transcript of the testimony of the defendant. Counsel claimed such privilege as a matter of entitlement. Such permission lies within the discretion of the trial court³ and we find nothing here reflecting an abuse there-, of.

McDonough, c. j., and crockett and WORTHEN, JJ., concur.

1 . Reynolds v. W. W. Clyde, 1956, 5 Utah 2d 151, 298 P.2d 530.

2 . Williams v. Ogden Union Ry. & Depot Co., 1951, 119 Utah 529, 230 P.2d 315.

3 . Smith v. Northern Pac. Ry. Co., 1914, 79 Wash. 448, 140 P. 685; Gephart v. Stout, 1941, 11 Wash.2d 184, 118 P.2d 801.