text:
In Munson v. Fishburn, supra, land held by a syndicate was exchanged for stock in a company to which property was transferred.Summary of this case from Latimer v. Piper
L. A. No. 4909.
June 19, 1920.
APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge. Reversed.
The facts are stated in the opinion of the court.
James S. Bennett for Appellant.
O'Melveny, Stevens Millikin, John E. Biby, Walter K. Tuller, Edwin A. Meserve, Shirley E. Meserve and Gibson, Dunn Crutcher for Respondents.
This is an appeal from a judgment on demurrer entered in favor of the defendants and against the plaintiff. The action was brought by the plaintiff for the rescission of a contract by which he subscribed to a syndicate to be formed by the defendants to acquire certain land, or for damages if rescission should be found to be inequitable.
It is alleged in the complaint that the defendants, J.E. Fishburn, president of the National Bank of California; R.I. Rogers, vice-president of said bank; R. A. Rowan Company, a corporation, and W.H. Joyce, were the owners of options to buy a certain tract of two thousand eight hundred acres of land in Los Angeles County; that a syndicate was formed for the purchase of said land; that for the purpose of inducing the plaintiff to subscribe for shares in the syndicate and thereby become a copurchaser of the land with the defendants and other subscribers, "defendants and each of them represented to plaintiff that the defendants R. A. Rowan Company and W.H. Joyce were the owners of the options to purchase the land"; that the price to the subscribers to the syndicate was $850 per acre, payable as follows: Nine hundred and twenty thousand dollars in cash on December 9, 1912, and the balance in two installments of equal amount in five and ten years, respectively, from the date of the exercise of the said options; that the said price was about $87.50 per acre in excess of the price to the said option owners, who were to receive and retain the difference for their options and services; that Fishburn and Rogers had subscribed to said syndicate and would pay on an equal basis with the other subscribers the sum of twenty-five thousand dollars, respectively, into the said subscription fund of nine hundred and twenty thousand dollars. "That, relying upon said representations that . . . Fishburn and Rogers had each subscribed the sum of twenty-five thousand dollars to said syndicate agreement on an equal basis with plaintiff and would pay in the amount of their said subscriptions, . . . plaintiff on or about the tenth day of November, 1912, signed said syndicate agreement and subscribed thereto the sum of five thousand dollars," and thereafter paid said sum to defendants Rowan Company and Joyce. "That had it been disclosed to plaintiff that . . . Fishburn and Rogers . . . had an interest in said options or in said profits, plaintiff would not have subscribed to said syndicate agreement or paid in the amount of his said subscription or any part thereof, or at all become a party to said syndicate agreement." That these representations were false in this: "That it was understood and agreed by and between defendants . . . that the amounts of said subscriptions . . . made by . . . Rogers and Fishburn, respectively, when paid in by them should be returned to them, respectively, as their shares of the profit of eighty-seven and fifty one-hundredths dollars per acre mentioned in said syndicate agreement as being received and retained by . . . R. A. Rowan Company and Joyce"; that Fishburn and Rogers were the owners of a one-tenth interest, respectively, in the options represented to the plaintiff as being owned exclusively by the disclosed option owners, Rowan Company and. Joyce. That at the time plaintiff signed the syndicate agreement the names of Fishburn and Rogers appeared as subscribers thereto with their subscriptions in the sum of twehty-five thousand dollars each, and that they concealed from and failed to disclose to plaintiff that there was an agreement between them to the effect that the subscriptions of the undisclosed option owners should be returned to them as their share of said profits.
It is further alleged that on December 3, 1912, the amount of the subscription fund having been paid in ahead of time, the purchase of the land was made and a corporation, known as the "Laguna Land and Water Company," organized; that this corporation was capitalized at two million dollars and stock was issued and divided into two million shares of the par value of one dollar each; that nine hundred and twenty thousand shares of this stock were issued to the option owners, Rowan Company and Joyce, in consideration of the transfer of the land to the corporation; that these nine hundred and twenty thousand shares were distributed to the subscribers to the syndicate at the rate of one share for each dollar subscribed; that on the same day twenty-five thousand shares were issued to each of the defendants Fishburn and Rogers, although they did not pay their subscriptions until January 24, 1913; that on the last-mentioned date they made a pretended payment to Rowan Company and Joyce of the amount of their subscriptions, and that at the same time, and pursuant to the agreement that the amount of their subscriptions, when paid, should be returned to them as their share of the profits, they received back from Rowan Company and Joyce the identical amount paid in by them.
The complaint then alleges that the plaintiff first discovered the fraud on June 1, 1915, but was not aware, until some time in November, 1915, of his right to rescind. On November 29, 1915, plaintiff notified the defendants that he rescinded the agreement, tendered back the stock which had been issued to him, demanded his money, and, being refused, brought this suit.
The demurrer was to the second amended complaint as amended, on the following general grounds:
"1. That the same does not state facts sufficient to constitute a cause of action.
"2. That the same is uncertain in the following respects, and each of them:
"a. It cannot be ascertained how the payment of twenty-five thousand dollars made by J.E. Fishburn was a pretended or fictitious payment.
"b. It cannot be ascertained how the payment of twenty-five thousand dollars made by R.I. Rogers was a pretended or fictitious payment."
The demurrer was sustained without leave to amend, and judgment was entered in favor of the defendants with costs.
1. It is well settled that associates in a common enterprise, under whatever guise, have a duty to each other to make full disclosure of any preference or profit not common to all of the associates. In Lomita Land Water Co. v. Robinson, 154 Cal. 36, [18 L. R. A. (N. S.) 1106, 97 P. 10], the defendant had secured an option on a certain tract of land for the sum of twenty-seven thousand five hundred dollars. He told one Whitlock that if he would find him a purchaser who would pay thirty-three thousand dollars for the property he (defendant) would pay Whitlock three thousand dollars. Whitlock organized a corporation to make the purchase and himself subscribed to the fund being raised to make the payment, but he did not disclose to his associates or cosubscribers that he was to get a profit. The court said. "When he did this he assumed as to his associates, under a well-established rule of law, a relation analogous to that which exists between partners, and was precluded from making any secret profit out of the contemplated purchase at their expense. The implied understanding between joint purchasers is that each is engaging in an enterprise solely for the mutual and common benefit and advantage of all, and that each has a common interest with the others according to the amount of his subscription." (Italics ours.)
The principle of that case was followed in California-Calaveras Min. Co. v. Walls, 170 Cal. 285, 293, [ 149 P. 595, 599], which quotes from the syllabus of the former case, as follows: "Promoters of a corporation formed for the express purpose of purchasing a particular piece of property occupy a fiduciary relation to their cosubscribers, and are bound truthfully to declare to their associates any personal interest they may have in the matter of the purchase. Without such disclosure they cannot legally profit at the expense of their associates, and if they were guilty of any misrepresentation of facts or suppression of truth in relation to their personal interest in the proposed purchase, the corporation is entitled to set aside the transaction, or recover compensation for any loss which it has suffered." (See, also, Western States Life Ins. Co. v. Lockwood, 166 Cal. 185, [ 135 P. 496]; Smith v. Goethe, 147 Cal. 725, [ 82 P. 384]; Pacific Vinegar etc. Works v. Smith, 145 Cal. 352, 361, [104 Am. St. Rep. 42, 78 P. 550]; Sims v. Petaluma Gas-Light Co., 131 Cal. 656, [ 63 P. 1011]; San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, [53 P. 410].)
While it is true that in some of the cases just cited — for example, the Calaveras case — it was not disclosed by the promoters that anyone connected with the organization of the enterprise was to get a profit, and in the instant case it was made known to the subscribers that Rowan Co. and Joyce were to receive the profits, nevertheless the same principle applies. Fishburn and Rogers held themselves out to the public as subscribers who had enough faith in the venture to risk twenty-five thousand dollars on it, and, because of this and the position they occupied in the financial world, plaintiff was induced to subscribe to the syndicate — which he alleges he would not have done had he known that they were interested in the options to an extent equal to the amount of their subscriptions. The law imposed upon these defendants the same duty to disclose their interest in the options as it imposed upon Rowan Company and Joyce.  There could be no question of plaintiff's right of action if there had been no disclosures as to the profits, for it is well settled that an option holder or promoter will not be allowed to retain profits — realized from the exercise of the option — unless the fact of his interest in the option is disclosed in advance.  We think that Fishburn and Rogers, in addition to being option owners, were joint promoters with Rowan Company and Joyce, and hence were equally bound to make known to prospective subscribers the nature and extent of their interest in the enterprise. If we understand defendants' position it is this: That since the amount of the profits to accrue was fully disclosed to the plaintiff, he will not be heard to complain that he was not informed as to whom the profits would go.  But this position ignores the claim of the plaintiff that he is entitled to rescission or damages because of the false representations that Fishburn and Rogers had no interest in the options, but were subscribers on the same basis as himself, and that he was induced by these false representations to subscribe, which he would not otherwise have done.
In Talmage v. Sanitary Security Co., 31 App. Div. 498, [52 N Y Supp. 139], where three actions were brought to rescind subscriptions to the capital stock of the defendant company and recover the installments paid thereon on the ground that certain men of standing in the community had held themselves out as subscribers, when in reality their stock was given to them, the court said: "We think that the representations were material. The fact that other persons had subscribed to the stock of the defendant in a large amount (especially that the two experts mentioned had thought well enough of the scheme to invest in it) would naturally influence the determination of the plaintiffs in reference to subscribing to the stock. With the exception of men of extremely cool judgment and great confidence in their own judgment, we all are apt to be influenced in our action and conduct by the action and conduct of our fellows. Especially is this the case in speculations. . . . Now, of course, what concerns the purchaser is the value of the property. In itself, the price paid by the vendor is not of any moment, but it is of vital importance to the purchaser in forming his judgment as to value. The law recognizes this fact, and holds a false statement as to price paid actionable. The principle is equally applicable to representations that other persons have purchased similar property, or subscribed for stock on the same terms upon which it is sought to induce any person to become a subscriber." (Italics ours.) (See, also, Garrett Co. v. Clark, 42 Misc. Rep. 610, [87 N.Y. Supp. 580]; Rose v. Merchants' Trust Co. (Sup. Ct.), 96 N.Y. Supp. 956; 29 L. R. A. (N. S.) 477, note; 20 N.Y. Ann. Cas. 86, notes; 2 Elliott on Contracts, 105.)
2. Defendants contend that in any event plaintiff could not have rescission for three reasons: "First — it was impossible to put defendants in statu quo. Second — plaintiff himself was guilty of laches. Third — by paying assessments on the stock with full knowledge of the facts plaintiff himself affirmed the transaction." We think there is no merit in any of these contentions.
As to the first, it is sufficient to point out that the agreement of the defendants was in effect an agreement to sell to the plaintiff one share of the corporate stock for every dollar he subscribed and paid upon the syndicate agreement; that while it is true that the stock was issued to plaintiff directly from the corporation, nevertheless, it was so issued at the instance of the defendants and in compliance with the said agreement; and that if the offer by the plaintiff to return to the defendants the stock received by him had been accepted by them, it would have put them in statu quo.
Upon the second point it may be observed that laches arising solely from a delay of four months is no defense to an action for damages and that this is sufficient to defeat a general demurrer. With regard to the right to rescind the complaint shows that the plaintiff did not discover that Fishburn and Rogers were interested in the profits going to Rowan Company and Joyce until June 1, 1915, and did not learn that, he had a right to rescind on account of that fact until some time in November, 1915, and that the offer to rescind was made on November 29, 1915. Under the peculiar circumstances of this case, and in view of the difficulty of determining the law as to the rights of a person in the position of the plaintiff, it is not surprising that he did not suspect that he had a right to rescind until he learned in November that other subscribers to the agreement, upon discovering the facts, had effected a rescission.  Under the rule applied in Hannah v. Steinman, 159 Cal. 142, 152, [ 112 P. 1094], the delay of four months in consulting an attorney cannot be said to be so unreasonable as to amount to laches.
Nor do we think that defendants' third contention that the payment of assessments by plaintiff after his discovery of the fraud constituted an affirmance of the transaction which bars his cause of action for rescission, if for no other reason than that he was entitled to preserve the property so that he might be in a position to tender it back if he should later seek rescission.
3. The cause was argued in Department and submitted for decision. The submission was subsequently vacated and the cause set for further argument on the question, "What injury is it necessary to show in a case where there is a rescission only, as distinguished from a suit for damages?" In this connection defendants, in their memorandum filed following resubmission, contend that "if plaintiff did not show either that the property purchased was worth less than he paid for it or that it would have been worth more than it actually was worth if the representations had been true, in other words, if he did not show pecuniary injury, then he has not shown anything justifying either rescission or damages." As already appears, it is alleged that at the time the plaintiff paid the five thousand dollars to Rowan Company and Joyce the interest which he thereby acquired had "a fictitious market value" of five thousand dollars, which value was created "by reason of the belief of the subscribers" that Fishburn and Rogers had subscribed on the same basis as the other subscribers; that it subsequently became known to the subscribers that Fishburn and Rogers had not subscribed on the same basis but were joint owners of the options with the other defendants, and that, by reason of this knowledge, plaintiff's stock became worth no more than two thousand five hundred dollars, and has never since been of a greater value than three thousand dollars.  In our opinion, this is a sufficient allegation of damages for rescission. It is, of course, well settled that in an action of damages for deceit the plaintiff must allege and prove the precise amount thereof. But this is not the rule where rescission is sought. Spreckels v. Gorrill, 152 Cal. 383, [ 92 P. 1011], was an action for rescission and to recover the money paid by the plaintiff to the defendant as the price of certain corporate stock upon the asserted fraudulent representations of defendant as to patent rights. It is said at page 387, [92 P. 1014]: "It is also claimed that the complaint is insufficient because of the absence of any showing therein that any pecuniary damage was caused by the fraud alleged. It is true that there is no express allegation that plaintiff suffered pecuniary damage therefrom, but in cases of this character this is not necessary. That fraud which has produced and will produce no injury will not justify a rescission or support, an action either for rescission or for damages, is an established principle of law and equity. But there is no rule that the injury must be of such a nature that it can be accurately measured in money. And we know of no rule of pleading which, in an action based upon a rescission between the parties or seeking to enforce such rescission, requires a statement that the fraud complained of had caused or would cause a specific amount of damages. It may be conceded that it must be shown that the plaintiff, by reason of the fraud, suffered an injury of a pecuniary nature, that is, an injury to his property rights as distinguished from a mere injury to his feelings, but it will be sufficient if the facts alleged show that material injury will necessarily ensue from the fraud, although the amount of the pecuniary loss is not stated." In Wainscott v. Occidental etc. Assn., 98 Cal. 253, [33 P. 88], the plaintiff sued to rescind certain conveyances which he asserted he had been induced to make through the defendant's false representations. The court said: " 'If any pecuniary loss is shown to have resulted, the court will not inquire into the extent of the injury; it is sufficient if the party misled has been very slightly prejudiced, if the amount is at all appreciable.' (2 Pomeroy's Equity Jurisprudence, sec, 898.) . . . In an action to rescind upon the ground of fraud, the fraud is the essential thing, and, while it must be coupled with loss, injury, damage, the precise amount of such damage is of secondary importance." This rule finds support in the following quotation from Black on Rescission and Cancellation, volume 2, page 901: "When a stock subscription has been obtained by fraud, the subscriber is entitled to maintain a bill in equity to annul the same, without alleging or proving that he has sustained any pecuniary loss by reason of the fraud." (See, also, Western States Life Ins. Co. v. Lockwood, 166 Cal. 185, 195, [ 135 P. 496]; Stern v. Lumber Co., 134 Fed. 509; Mack v. Latta, 83 App. Div. 242, [82 N.Y. Supp. 130, 135]; Commonwealth Bonding etc. Co. v. Bomar (Tex. Civ. App.), 169 S.W. 1060; Johns v. Coffee, 74 Wn. 189, [133 P. 4]; 22 Standard Ency. Procedure, 1001, note 66; 1 Cook on Corporations, p. 447; 1 Elliott on Contracts, p. 164; 14 Corpus Juris, 614, note 58.)
In the recent case of Stillwell v. Rankin, 55 Mont. 130, [174 P. 186], the suit was brought to secure the rescission of a contract for the purchase of certain shares of stock. The alleged fraudulent representations upon which plaintiff based his cause of action were as follows: That, plaintiff being a stockholder in the company, defendant, an officer of the company, "stated to plaintiff that one hundred shares of the stock had been turned back to the company by a subscriber who was unable to pay for it, and solicited plaintiff to purchase the stock 'to help the said company out,' " and plaintiff alleged that "in reliance thereon he agreed to purchase the stock (which otherwise he would not have purchased)." We quote from the opinion: "Is it essential to the statement of a cause of action for the rescission of a contract for fraud that the plaintiff allege that he has suffered pecuniary loss? Authorities may be found which answer in the affirmative and most emphatically, but curiously enough, do not insist that the amount of such loss is material, if it is at all appreciable. . . . Courts of equity, like courts of law, do not concern themselves with wrongs which do not produce injury; but 'injury' and 'pecuniary loss' are not synonymous terms. . . . Most of the courts and text-writers employ the term 'damage' in the sense of injury; a few restrict its meaning to financial loss. We prefer to adhere to the rule which gives to the term its broader significance, as including either pecuniary loss or the alteration of one's position to his prejudice. . . . If the allegations of this complaint are true, plaintiff was induced by fraudulent representations to assume obligations which otherwise he would not have assumed, and to purchase property which otherwise he would not have purchased. We deem the allegations sufficient to disclose damage within the meaning of that term which we adopt." (Italics ours.)
In Vulcan Fire Ins. Co. v. Jorgenson, 33 Cal.App. 763, [166 P. 835], the plaintiff sued to recover an alleged balance due on a subscription for certain shares of its capital stock. The defendant set up in his cross-complaint that his subscription was procured upon the false representation that a certain bank president, upon whose integrity and business capacity the defendant placed special reliance, was connected with the insurance corporation, and asked for the rescission of the contract and the recovery of the money paid. Judgment went for the defendant. Among the grounds urged for a reversal of the judgment was "that the record contains no allegation, evidence, or finding that the cross-complainant was in any way pecuniarily damaged by the alleged false representations." The appellate court said: "That such representations . . . are sufficient to entitle the subscriber to rescind, without proof of pecuniary damage suffered, is well settled." This language was objected to in a petition for a hearing in this court, but the petition was denied. In Davis v. Butler, 154 Cal. 623, at 627, [ 98 P. 1047, 1049], it was said, citing Spreckels v. Gorrill, supra: "It is not essential to the right to rescind a contract for the purchase of property that the purchaser should be able to show that the property purchased was worth less than he paid for it. It is enough that he was induced by false representations to buy property which would, if the representations had been true, have been worth more than it actually was worth."
The case of Bailey v. Fox, 78 Cal. 389, [20 P. 868], is cited by defendants. In that case the plaintiff had been induced, through false representations made by the defendant as to former profits in conducting the business, to purchase an interest in the defendant's stock of hardware and agricultural implements. The opinion declares: "The complaint states no cause of action so far as it relates to fraudulent representations respecting the question of former profits of the business. It contains no allegation that the plaintiff was induced thereby to pay a higher price for the goods than he would otherwise have done, nor is it averred that the business was not profitable after the plaintiff bought into it. In other words, there is nothing in the complaint to show that the plaintiff was in any way injured by the representations, admitting them to have been false. . . . In order to entitle a party to rescind a contract, he must not only show the fraud, but that as a result thereof some damage has resulted to him." It was not held in that case or in any other cited by the defendants, nor do we know of any case holding that the damage suffered must be capable of exact calculation in order to entitle the party injured to rescind the contract. It is only necessary that the allegation and proof must show an "appreciable" amount of loss.
Plaintiff alleges in effect that he was induced by the false representations to subscribe to the syndicate and that the shares issued to him would, if the representations had been true, have been worth two thousand dollars more than their actual value at the time of the discovery of the fraud. By these false representations, it is alleged, the plaintiff was induced to part with his money, and, to the extent of the difference between the alleged market value of the stock — three thousand dollars — and the sum which such stock would have been worth if the representations had been true — five thousand dollars — the plaintiff has suffered a pecuniary loss of two thousand dollars. In every case of fraud, either where damages or rescission is sought, it must be alleged and proved that the complainant has suffered material injury. But it is the character of the fraud constituting the cause of action which determines the extent to which the pleading and proof must go in order to establish damage. As already pointed out, plaintiff assumes to state his cause of action on the alternative theory — that if he is not entitled to rescission, damages may be awarded.  First, as to rescission: It is clear from the authorities we have cited that the exact amount of damage need not be shown, provided it be in an "appreciable" sum.  Where the action is for damages, however, the plaintiff must allege and prove that by reason of the fraud he has suffered damage in a definite amount. In the one case damage is predicated on the change in position; in the other on the extent of the pecuniary loss.  The measure of damages here would be the amounts paid in by the plaintiff, including the assessments, with interest thereon at the rate of seven per cent from the dates of such payments, less the value of the stock at the time of the discovery of the fraud. Plaintiff alleges that the factor which induced him to subscribe to the syndicate was his confidence in the financial standing and business judgment of Fishburn and Rogers, who, it was represented, had already subscribed for twenty-five thousand shares on the same basis as that upon which he was asked to invest.  While the value of the connection of Fishburn and Rogers with the syndicate may not be capable of ascertainment, nevertheless, if the plaintiff was induced by the defendants' false representations to change his position in reliance thereon, the lessened value of the stock would constitute damage for the purpose of rescission — the plaintiff "was placed in a worse position than he otherwise would have been." (2 Pomeroy's Equity Jurisprudence, 4th ed., sec. 898.) We think the complaint is sufficient under either theory.
4. Nor can we agree with defendants' contention, made in their memorandum filed following the resubmission of the case: "If there is any right of rescission . . . it is a right to rescind against the corporation, and there is no right on the part of a subscriber to rescind a subscription as against other shareholders or promoters." The only authorities which defendants cite on this point are Western Bank v. Addie, L.R, 1 H. L. (Sc.) 185; Love v. Love, 145 Ill. App. 150, and Sim v. Edenborn, 163 Fed. 655. The first of these cases held that the false representations of directors are imputable to the corporation, and one "who has been induced to purchase stock in reliance on such representations cannot be held to his contract." Love v. Love, supra, was a bill in equity for the partition of certain premises, and "the sole question" was "whether the lower court erred in appointing a receiver" — rescission was not in any way involved. In Sim v. Edenborn, supra, the court held that the original complaint outlined a cause of action in equity, while purporting to be a case at law and praying for damages at law. Defendants' demurrer was, therefore, sustained. But in Heckscher v. Edenborn, 203 N.Y. 210, [ 96 N.E. 441], a case arising out of the same transaction, the defendant was the principal promoter and organizer of a syndicate, and the plaintiff asked that he be released from a contract which he had made as a subscriber to the syndicate on the ground that the defendant, by inducing him to become a party to the agreement, was guilty of fraud. The court said, in 203 N.Y., at page 226, [96 N.E. 446]: "It is of course true that in an action between two parties to a contract, one cannot avoid it as against the other, who is entirely innocent, on the ground that he was induced to make it by the fraud of a third party, wholly disconnected with the transaction. So far as I can find, however, this principle has never been applied in an action by the injured party against a person claiming protection as agent under the contract which he had fraudulently induced. But beyond this I do not think it can be said that the moneys of plaintiff's assignors were not paid to defendant under a contract for his benefit and to which he was a party. He was the promoter of the enterprise, and procured the execution of the syndicate agreement. By its express terms it was made by each subscriber, not only with the other subscribers, but also with him, as a syndicate manager, and it was for his benefit, not only in authorizing him to purchase the property in question, but also in conferring upon him general powers as a manager. If the contract be regarded as a single one between each subscriber on the one side and his fellow-subscribers and the managers on the other, it must follow that the fraud of either of the latter in inducing it would be a ground for rescinding it against all parties. If the agreement should be regarded as embracing two contracts, one made by each subscriber with his fellow-subscribers, and a second one made by him with defendant as agent and manager, it may be that in an action between the subscribers the contract could not be avoided because of the latter's fraud, although I have doubts about that. In Metropolitan Coal Consumers' Case, 66 L. T. (N. S.) 700, it was held, after consideration of the principle now being urged by defendant, that a subscriber could be relieved from a subscription for corporate shares because of false statements made by promoters in a prospectus issued before the corporation was organized, 'although not made by the company or its agents.' But, however this may be, this is an action between the subscriber and the agent, between whom in terms there existed a contract authorizing the transactions here involved, and in view of this and the surrounding circumstances I do not think it possible for the latter to say that he was not a party to the contract and to the transactions which occurred under it, within the rule now being discussed."  In our opinion the principle there invoked is applicable to the facts alleged in this case. The defendants do not question the correctness of this principle, but they attempt to distinguish that case from the one at bar in (1) that whereas in the New York case "the property which the corporation acquired was the defendant's own property," here "the defendants never owned the tract of land and never owned the stock"; and (2) the defendants here were not vested with any discretion in purchasing property for the corporation, whereas in the Heckscher case the defendant was authorized to exercise a discretion. As to the first ground of attempted distinction, we are not disposed to hold that, although defendants held the options on the land in question and undoubtedly did receive any profits there may have been in the transaction, the contract of subscription may not be rescinded as against them because they did not have the title to the shares which plaintiff received or to the land which those shares represented. Nor, in the view we take, would the other distinction attempted to be drawn by defendants make any difference. Plaintiff's cause of action is based, not on the abuse of any discretion on the part of defendants in purchasing the land on which they held the options, but on their failure to disclose to him the interest which Fishburn and Rogers had therein. As we have said, a fiduciary relationship existed between the defendants and the plaintiff, and, assuming — as we must — that the allegations of the complaint are true, the defendants should not be allowed to reap the benefit arising from their abuse of the confidence reposed in them.
It follows that the demurrer should have been overruled.
Shaw, J., and Olney, J., concurred.
Hearing in Bank denied.
All the Justices concurred, except Wilbur, J., and Lennon, J., who were absent, and Sloane, J., who did not vote.

domain: law


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Lauren Michaels (ensemble) A comedienne of the consciousness, shedding light on the darkness, surviving off hugs. Previously performed at Second City in “Second Chances in Seconds Flat,” her brainchild. A graduate of NYU TSOA, favorite roles include Jackie-O (House of Yes), Jo (boom) and Patient of the Day (Pittsburgh Med Students (yeah, like Kramer)).
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domain: artistic


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Your dentures may give you more confidence and make you feel better about your mouth – but when it comes the question of should you wear you dentures to bed, the answer is probably not. When it comes to sleeping in your dentures it’s recommended that you should take them out at night and give your gums a rest.
Can you tell if someone has dentures?
When you are very close to someone with dentures you may be able to tell if you are able to see clips or other attachments around certain teeth. If the color of the teeth doesn’t all match, or if a partial denture plate slips out of position when kissing, you’ll know.
What can I use to tighten my denture?
There are different types of relines/liners: processed relines, temporary liners, soft relines and temporary tissue conditioners. All of which will tighten your denture; you will need to discuss with your denturist as to which type of reline will meet your needs.
Which denture goes in first?
If the patient is able, have them remove the dentures and give them to you. If the patient requires assistance, remove the dentures carefully, starting with the upper denture by gently moving the denture up and down to break the seal, and then gently sliding the denture out of the mouth.
Can you put dentures in hot water?
Dentures should never be placed in hot or boiling water as it could cause them to warp.

domain: medical


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Environmental activists scored major victories this week both locally, with Austin Mayor Lee Leffingwell’s announcement that the City of Austin will sell its share in the Fayette Coal Power Plant in La Grange and move towards a coal free energy future, and nationally, with two major developements in the Keystone XL “tarsands” pipeline saga.
On Wednesday, Mayor Leffingwell pledged to join other major cities across the the country in moving Austin off of polluting coal fired energy production by selling Austin Energy’s share in the aging Fayette Coal Plant. The Fayette plant is a notorious polluter that, according to the Sierra Club, “produces approximately 307 pounds of mercury each year. Only one gram of mercury is needed to contaminate an entire 20 acre lake.” Austin has access to viable clean energy alternatives, such as wind power, and the Fayette plant’s inability to comply with upcoming federal emissions standards will see its operational costs “rise significantly over the next few decades.” As Cyrus Reed, Conservation Director for the Sierra Club Austin put it:
We congratulate Mayor Leffingwell on the renewal of his commitment to move Austin beyond coal. Today's announcement is consistent with a plan first crafted over a year ago and approved unanimously by City Council in February. Mayor Leffingwell called for a dialogue with the community, with Austin Energy, and with the LCRA. We welcome this dialogue, and as a first step, Sierra Club has developed a plan to phase out of the Fayette Coal Plant by 2016.
I do have a couple of concerns with the announcement that I will look into further in the coming days. The first is that the electric grid in Texas is run by Ercot (the Electric Reliability Council of Texas) an organization that was first created in 1941 to help industrial production along the Gulf coast. Under deregulation, Ercot is the sole authority to determine how power flows across the “nodal system” that exists in Texas, for, unlike the other large regional power grids in the US and Canada, Ercot is contained within the borders of Texas and therefore not subject to Federal interstate commerce regulations. In Texas, if a plant near Dallas has excess capacity, and Waco experiences a power surge, then Ercot determines how much power moves between the two cities. Even though Austin would sell its share in the Fayette plant, it is not clear whether the city would have a say on which plants were providing power generation to Austin Energy customers. For more on Ercot, read this extensive PDF. Also, LCRA (the Lower Colorado River Authority) has stated that they are “proud” of the Fayette plant and have “no plans to close [the plant]and will not support any plan to shut down the plant.”
It is also significant that Leffingwell made his announcement at press conference kicking off his re-election campaign. When Randi Shade lost her seat to Kathie Tovo in June, Leffingwell lost a strong pro-business ally, and needed support from the generally left leaning council for his big pet project, a $500 million water treatment plant. It is critically important for Leffingwell to hear from his constituents just how important Austin’s clean energy future is.
Please contact the Mayor and tell him that you support his decision and want to see Austin powered by clean technologies. You can easily write him here, or you can attend the Sierra Club’s Town Hall meeting:
Sunday, December 4, 2011
TSEU Office at 1700 South 1st Street, Austin, Texas
Nationally, the Keystone XL pipeline that would bring dirty, “tarsands” bitumen from Alberta, Canada to Houston and Port Arthur hit two major obstacles this week. First, President Obama decided to delay a decision about the pipeline for up to 18 months as the State Department re-evaluates the enivronmental impact of the pipeline route which would take it through at least seven states and over several critical aquifers including the vast Ogalalla Aquifer in the Sand Hills region of Nebraska and the Carrizo-Wilcox Aquifer in Texas. Any spill in these areas would be a disaster for millions of farmers, ranchers, and would pollute municipal water systems. The initial State Department environmental impact statement was written by a paid contractor of Transcanada, the very company that is trying to build the pipeline. An independent EIS drafted by professionals who are not employed by Transcanada will show how dangerous this pipeline really is. The administration’s own Environmental Protection Agency has already issued two statements condeming the pipeline, but under an obscure Johnson administration executive order from 1968, they do not have jurisdiction over pipelines that cross international borders.
Obama’s decision is definitely about the 2012 presidential election. In 2008, Obama ran a progressive campaign, pledging to provide good governance, end the wars, fix the economy, provide health care, and protect the environment. The results of his first term have been suspect, at best, on all of these issues, and he needs the support of his progressive base to win his re-election. As Ian Davis, of the Sierra Club, put it, “if he caves on [the pipeline]he will lose his volunteer base,” because this is “a litmus test issue for young people.” In practice, this delay enables anti-pipeline advocates to increase pressure on the administration from multiple angles, and hopefully make it politically unfeasible for the pipeline to be built. In Texas, this pressure comes in the form of 391 commissions. These 391’s are “super governments” formed when any number of mayors or city councils vote to form one and are able to “join and cooperate to improve the health, safety, and general welfare of their residents.” 391’s were instrumental in defeating Rick Perry’s hated Trans Texas Corridor, and are the basis for pipeline opposition in Texas.
Nebraska, which had been the center of anti-pipeline activism, scored its own big victory against the pipeline this week when Transcanada announced it would reroute the pipeline around the state. The initial route passed through the sensitive Sand Hills region, the primary recharge zone for the vast Ogalalla Aquifer that provides water to a huge area in multiple states across the southern great plains. In some ways, the success in rerouting the pipeline away from Nebraska will make it more difficult for activists in other states (given the strong, bipartisan opposition to the pipeline in the state); however, the mounting costs associated with the delays will eventually force Transcanada to find an alternative route, or non at all. The company’s stock as already fallen 9.1% since October 4, and the delays are projected to cost them up to $1 million per day.
I will continue the discussion next week on both issues, and provide more ways to help get Austin off of dirty coal, and keep the US free of dirty Canadian tarsands oil.
Again, contact Lee Leffingwell here to show him your support for Austin’s clean energy future. And visit stoptarsands.org for information on how you can help stop this looming environmental disaster from taking place.

domain: politics


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Maximum successful results with BitStarz
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Bit Starz offers to bet big $.
Conditions are very simple, to play for a fee, you need to create a profile, go to it, confirm through mail and make a deposit. The procedure is simple enough, go through the registration, enter the details of the correct information about yourself, when asked by support, attach your passport. If there are problems with financial transactions or bonuses are not credited on time, it can help.
It is necessary to use your personal assets to play for pay. You are not allowed to use bonuses or club bonuses. To start, it is optimal to have 50 AUD and you can start. Each participant can take advantage of the wager. In BitStarz it is about 40, in other words, you offer a bet of 10 dollars, and the amount of 10X40=400 dollars. If the investment will be successful, you can instantly submit a request to attract bonuses to your personal account. Even if you don’t win in the game, you can also use the bonuses in the future. The most popular games for different amounts are considered to be: Drunk Santa; Underground Tuning.
Comfortable game provides a lot of options. Any player can use the top video slots from global developers. Now comes 70 of the coolest slots from Megajack and Amatic, as well as 2,600 different vender machines, where the members fall unusual symbols. If the administrators have any questions about the technical assortment, access to the RNG can be requested from the providers exclusively by the owners of the online casino. But as you know, the rights will be denied, and the providers themselves will sort everything out at once and inform the participants web-casino. Let us also highlight the fact that gambling games are divided on the site according to the following directions:
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Different members are interested in how to withdraw something. As practice shows, some of the members only deposit and play using Bit Starz and keep the dividends in their profile account. There are also those memebers who gladly cash out their $ at quickest withdrawal casino BitStarz. Mostly these are bonus hunters who prefer to withdraw their winnings and brag about them in insta and FB. In this regard, a number of services are offered to them for withdrawal:
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The website also has a number of free slots on such topics: machines and monsters.

domain: hobby


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Color photohistory (I).
Climbing and Mountaineering
Extreme and Conventional Sports
Photo and Video
Motivation and Self-Help
Ecology and Gardening
Though the invention of photography had an immediate impact on the whole art & culture world at this time, but the early photographs were all in monochrome. As an additional service, daguerreotypes could be hand- painted, which kept a quite number of painters of miniatures in great business. However, it was to be a little time before color photography was about to become a reality.
The results were somewhat disappointing to Maxwell and his collaborator Thomas Sutton, but nevertheless they deserve the credit for laying the foundations of trichromate color photography, named later on as RGB.
The Search Engine for Exploration, Survival and Adventure Lovers © - Andinia.com ©

domain: history


Chevrolet made a lot of fans when it revealed the 2018 Tahoe Rally Sport Truck (RST). Now, GMC is following in Chevy’s footsteps with the 2019 Yukon Graphite Performance Edition.
The SUV gains the Tahoe and Suburban RST’s 6.2-liter L86 V8 engine good for 420 horsepower and 460 pound-feet of torque. The mill is married to GM’s 10L80 10-speed automatic transmission and a specifically-tuned Magnetic Ride Control suspension. However, unlike its RST cousin, there’s no brake upgrades or Borla exhaust present.
Instead, the 2019 GMC Yukon Graphite Performance Edition keeps things subdued with plenty of black accents. Included with the special-edition SUV are 22-inch bright machined wheels with Carbon Flash Metallic pockets, black assist steps with gloss black accents, premium black chrome grille mesh insert and fog lamp surrounds, body-color grille surround, black roof rails, gloss black beltline moldings and additional black trim.
The SUV also gains an active two-speed transfer case for 4WD models, a trailer brake controller, a head-up display, and eight-inch touchscreen with navigation.
Buyers can opt for the Graphite Performance Edition on any Yukon SLT model in both Yukon and Yukon XL configuration, and in either RWD or 4WD variations.
Oh, and GMC will sell buyers a Yukon Graphite Edition minus all the extra gusto from the 6.2-liter V8. But that’s nowhere near as cool.


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Dogs are carnivores and we believe they deserve to thrive on real minimally-processed food – the way nature intended. Because the closer foods stay to their natural state, the better they are. It’s what your dog would eat in the wild, only better, because all Stella & Chewy’s dinners are specifically formulated for your dog’s nutritional needs and made with premium ingredients you can count on.
90-95% meat, nutrient-rich organs and bone
Grass-fed, cage-free, wild-caught or farm-raised protein
100% organic fruits and vegetables
No grains, gluten, fillers, added hormones or antibiotics
FEEDING GUIDE Serve as is or rehydrate by adding warm water. If your dog does not drink plenty of water at mealtime, we recommend rehydrating. To rehydrate, crumble and add 1/4 cup of water for every two patties. When feeding dry, always make sure your dog drinks ample fresh water at mealtime.
# of Patties
Over 40lbs., use as a mixer or topper with dry food.
For puppies and pregenant & nursing mothers, feed up to twice the balove adult amount. Always consult your veterinarians as requirements vary based on number of puppies and stage of lactation.
New User:Always transition any new food by slowly mixing with your current diet for the first 7-10 days, increasing the amount of Stella & Chewy's while decreasing the amount of the other brand.

domain: pet


by Anton Shilov
09/16/2009 | 12:21 PM
Super Talent, a leading supplier of memory and flash products, has announced a series of one of the largest solid-state drives (SSDs) in the world. The new RAIDDrive SSDs will be aimed at gaming personal computers, servers and workstations, however, their pricing is more than likely to be rather enormous.
“RAIDDrive SSDs are a quantum leap ahead of existing SSDs in sequential transfer speeds due to our RAID architecture combined with the latest in flash technology and the bandwidth of the PCI Express interface. RAIDDrive shatters previous storage system bottlenecks and sets a new standard in performance,” said CH Lee, chief operating officer of Super Talent.
Super Talent’s RAIDDrive supports sequential read speeds of up to 1.4GB/s and sequential write speeds of up to 1.20GB/s. The RAIDDrive – which operates flash memory chips in RAID mode to boost performance – features 1GB of DRAM cache and utilizes PCI Express 2.0 x8 interface. Performance of the new RAIDDrive is even higher than maximum speed of OCZ Technology’s Z-Drive (up to 500MB/s read speed and up to 470MB/s write speed).
SuperTalent is releasing three families of RAIDDrives with features optimized for different market segments:
Higher capacity RAIDDrive models use the RAIDDrive Expander – a separate PCIe card – to hold a total of eight SATA SSDs.
RAIDDrive SSDs are available to OEMs and system integrators directly from Super Talent. OEM pricing for the 1TB RAIDDrive GS is $4999. The price of higher capacity and/or SLC flash-based SSDs could be too high not only for gamers, but also for workstation users. According to Jon Peddie Research market research firm, average selling price of a workstation was just $1929 in Q2 2009, therefore, $4999 or higher price point for a data storage device is very high even for workstation market.


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Gerbil Care Guide
Your gerbils will fit great into your life. To keep them happy and healthy, it’s important to understand what to look out for when it comes to their health.
Keeping your gerbils fit and healthy
You should check your gerbils over regularly for any signs they’re feeling unwell. It’s a good idea to weigh your gerbils too. Your gerbils are most active during the evening, so this is the best time to observe how they’re behaving and pick up any signs of ill-health.
Common health problems
Your gerbils’ teeth will grow throughout their lifetime. Overgrown teeth can cause discomfort and stop your gerbil eating. To prevent them from overgrowing, they’ll need plenty of things to gnaw on to keep those teeth ground down. Cardboard, wooden toys or healthy snacks like Excel Gnaw Sticks are all great options! Older gerbils might not gnaw as much as they used to so you might need a vet to clip the teeth safely and painlessly.
Did you know gerbils can catch colds from humans? If you have a cold, don’t handle your gerbils. Their symptoms are similar to ours, like sneezing and a runny nose. If one of your gerbils catches a cold, isolate them from the rest to stop it spreading. Keep the poorly gerbil in a warm room. If the symptoms haven’t cleared in 2 – 3 days, visit your vet.
Tyzzer’s disease is a serious bacterial disease that causes diarrhoea. It can be fatal if left untreated. Other symptoms to watch out for are loss of appetite and tiredness. If you spot any of these signs, take your gerbil to the vet as soon as possible. Tyzzer’s disease is picked up from diseased bedding. To avoid it make sure to keep your gerbils’ housing clean and use good quality bedding. An outbreak can also be caused when something stressful happens, like moving your gerbil to a new environment, so keep an eye on them.
Gerbil health check
If you notice anything unusual about your gerbils, especially a change in behaviour or eating and drinking patterns, it’s best to speak to your vet. You know your gerbils best, so will know when they’re not their usual bright, happy selves.
Behaviour: Happy gerbils are active and playful. Keep an eye on any behaviour changes or if your gerbils are tired more the usual
Bottom: Make sure your gerbil’s bottom is free from discharge or swelling. Staining or stickiness around the bottom can be a sign of diarrhoea or infection. If you see these symptoms, take your gerbil to the vet as soon as possible
Fur: Their coat should be sleek and shiny. Look out for a matted and greasy coat
Mouth and teeth: Most gerbils will happily let you check their teeth for any signs they’re misaligned, chipped or too long. A healthy gerbil’s teeth are yellow, not white. If you notice some sores around your gerbil’s mouth, this could be a sign that their bedding is too rough when they’re burrowing into it
Nails: Gerbil’s nails are continuously growing, just like their teeth. Playing with wooden toys will keep their nails short. You should still check regularly to see they haven’t become overgrown. If they have, your vet can clip your gerbil’s nails safely.
Nose: Your gerbil’s nose should be clean with no discharge. Check there’s no sores around their nose. This can be a sign that their bedding, where they love to burrow, is too rough
Scent gland: A gerbil’s scent gland is a small, bald patch on your gerbil’s underside. They rub this against things to mark them with their scent. Males in particular can be at risk from tumours in the scent gland, so feel gently to see if there are any lumps. Tumours grow very quickly but can be easily removed by a vet if they’re found early
Tail: Check your gerbil’s tail is covered in fur. Hairless patches could be a sign of mites or over-grooming, which happens when they’re bored
Neutering your gerbils
Did you know, female gerbils can produce a little of 4 – 10 baby gerbils every 24 days? Neutering will prevent any unwanted pregnancies. Generally, you should only neuter male gerbils. Not only will this prevent the pitter patter on tiny gerbil feet, but it can also help reduce fighting.
If you do neuter your male gerbil, it’s a good idea to keep an eye on them for the first couple of weeks. Make sure they’re not touching the healing stitches and that they’re eating and toileting as normal.
DO YOU NEED MORE ADVICE?
To help you find the right food for your pet have a look at our product range.
Alternatively you can call our free consumer care line on +44 1405 862241 between 9am and 5pm, Monday to Friday. Our dedicated team of pet experts will help you make the right choice.
If you should have any concerns about the health of your pet, always consult a vet.