Opinion of the Court.

their money therein for a series of years, and to invite the purchaser to an examination of the record evidences thereof. So far as respects the testimony of Mr. Fleming, the lawyer, it is proper to say that he does not testify that there was any direct suggestion to the alleged effect, but simply that he obtained an impression from the general tone of the conversation, while these appellants positively deny that there was any suggestion or thought on their part of anything improper; and say that they simply notified him that they might be asked to name some local lawyer to examine the title for the purchaser, and that they should take pleasure in recommending him.

Again, it is charged that these defendants surrounded this purchaser and his counsel and succeeded in preventing them from having conversations with other citizens, or making inquiries of them, and ascertaining such facts or reports as might have been gathered from such inquiries. But any attempt of this kind is denied by all. It was natural that they should be interested in making a sale, and that they should do what they could to show attentions to the purchaser and his counsel, and should be often with them; but it does not appear that they hindered them in any way from making such inquiries and investigations as they desired. On the contrary, their testimony is that they urged them to make full inquiry and investigation before consummating the purchase.

It is further charged in the bill that, "in order to induce said plaintiff to accept and confide in the said representations as to the validity of the said title, and in order to prevent the said plaintiff from making inquiries in other directions respecting the same, the said Daniel D. T. Farnsworth, at the time of making the said representations respecting the said title, also represented to the said plaintiff that he, the said Daniel D. T. Farnsworth, had been governor of the State of West Virginia and a member of the senate of the same State, and was at the time of making such representations the president of a bank and the president of a railroad company and a member of the Baptist Church, and had heretofore built a church edifice, which he pointed out to the said plaintiff, and that he was not such a man as would deceive or take advantage of the said plaintiff,

Opinion of the Court.

or would have anything to do with titles to land unless they were good titles."

According to the plaintiff's testimony, it would appear that these statements were made before the signing of the original contract. According to Mr. Farnsworth, that, while he did make statements of that character, it was only after the contract was signed, and while walking about the city with the plaintiff, and in response to inquiries made by him. But, further, the testimony of Mr. Farnsworth is that those matters. concerning himself, thus stated, were true, and there is no suggestion anywhere that they were not true. If true, they certainly were not false and fraudulent representations, and, if false, they were not of a character to invalidate a contract. It would hardly do to hold that a party was induced into a contract by false and fraudulent representations, because one of the vendors represented that he had been governor of the State, and was a member of the church, and president of a bank and a railroad company.

One other matter alone requires notice. It appears that in the talk preceding the contract of purchase the committee had named $20,000 as the price of the land, and had asked a further sum of $1500 for their own services; but that the final outcome of the negotiations was the fixing of $15,000 as the price of the land, and $6500 to be paid to these two appellants for their services. It is enough to say, that whatever wrong these appellants were guilty of in making this change, was a wrong to their associates and not to the purchaser. It is not a matter he can complain of. The full amount which he had to pay was the amount they named in the first instance, to wit, $21,500, and if in fraud of the rights of their associates they changed the distribution of that sum, it was a wrong which only the parties injured can take advantage of.

This is the whole case presented by the record. The vendors pretended to sell only a tax title. They specially guarded themselves against any rights of actual settlers. The validity of their title and the extent of it were matters apparent on the records, and open to the inspection of the purchaser. He did not act on their representations that the title was good, but

Syllabus.

brought his own counsel from home to examine those records, and acted upon his judgment of the title. The conduct of the defendants supports their testimony, that they believed there was validity to their title. The particular statements complained of as against one of these appellants were true in fact, and, if not true, were not of a character to avoid the purchase. The wrong which these two appellants are specially charged to have been guilty of was a wrong against their associates and not against the purchaser, nor one of which he can take advantage. It follows, therefore, that there was no such showing made as would justify a court in rescinding the contract of purchase, and decreeing a repayment of the money.

The decree will be reversed, and the case remanded, with instructions to dismiss the bill as to these appellants.

MR. JUSTICE GRAY did not hear the argument or take part in the decision of this case.

FINN v. BROWN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 106. Argued November 24, 25, 1891.

Decided December 14, 1891.

Fifty shares of the stock of a national bank were transferred to F. on the books of the bank October 29. A certificate therefor was made out but not delivered to him. He knew nothing of the transfer and did not authorize it to be made. On October 30 he was appointed a director and vice-president. On November 21 he was authorized to act as cashier. He acted as vice-president and cashier from that day. On December 12 he bought and paid for 20 other shares. On January 2 following, while the bank was insolvent, a dividend on its stock was fraudulently made, and $1750 therefor placed to the credit of F. on its books. He, learning on that day of the transfer of the 50 shares, ordered D., the president of the bank, who had directed the transfer of the 50 shares, to retransfer it, and gave to D. his check to the order of D., individually, for $1250 of the $1750. The bank failed January 22. In a suit by the receiver of the bank against F. to recover the amount of an assessment

Statement of the Case.

of 100 per cent by the Comptroller of the Currency in enforcement of the individual liability of the shareholders, and to recover the $1750: Held,

(1) In view of provisions of §§ 5146, 5147 and 5210 of the Revised Statutes, it must be presumed conclusively that F. knew, from November 21, that the books showed he held 50 shares;

(2) F. did not get rid of his liability for the $1250, by giving to D. his check for that sum in favor of D. individually.

THE Court stated the case as follows:

This is an action at law, brought in the Circuit Court of the United States for the District of Colorado, by the receiver of the First National Bank of Leadville, Colorado, against Nicholas Finn, to recover $8750, with interest upon $7000 thereof from September 28, 1885, and upon $1750 thereof from January 2, 1884. The bank was a national banking corporation; and, it becoming insolvent, the Comptroller of the Currency, on the 24th of January, 1884, appointed one Ellsworth receiver of the bank, who afterwards resigned, and the plaintiff became his successor.

The amended complaint alleges, that the defendant, on the 29th of October, 1883, became the holder of 50 shares of the capital stock of the bank, and, on the 12th of December, 1883, the holder of 20 others of such shares, the shares being of the par value of $100 each; that certificates of stock were duly issued to the defendant for such shares respectively; that, on the 28th of September, 1885, the Comptroller of the Currency, under § 5151 of the Revised Statutes, determined that, in order to provide the money necessary to pay the debts of the bank, it was necessary to enforce the individual liability of its shareholders to the full extent of 100 per certum of the par value of the shares of its capital stock, and thereupon, on that day, made an assessment to that effect, and directed the plaintiff to take the necessary proceedings to enforce such individual liability; that thereupon there became due from the defendant $7000; that due notice was thereupon served upon him; but that he had paid no part of the assessment.

The amended complaint then sets forth, as a second cause of action, that on the 2d of January, 1884, and for a long time

Statement of the Case.

prior thereto, the defendant was a shareholder and director, and acting cashier, of the bank; that, on that date and for a long time prior thereto, the bank was insolvent; that on that date, by its board of directors, it fraudulently and wrongfully declared a dividend of 25 per cent on its capital stock, to be paid to its shareholders; that the defendant, as such director, was present at the meeting of the board at which such dividend was declared, and united in such action, with full knowledge of such insolvency; that on that date, the defendant received from the bank $1750, as his proportion, on said 70 shares, of said dividend, and retained, and still retains, that sum, with full knowledge that at that date there were then no net profits of the bank, and that the dividend was wrongfully withdrawn from its capital stock; and that repayment of the $1750 had been demanded by the defendant, and refused.

The answer denies that the defendant ever became the holder of the 50 shares of stock, or that there was issued to him a certificate for 50 shares, but admits that on the 12th of December, 1883, he became the holder of 20 shares, and that there was issued to him a certificate therefor. It admits the defendant's liability for $2000 on the 20 shares of stock, and alleges that, after the commencement of the suit, he paid to the plaintiff the $2000. It denies that, at the time stated in the second cause of action set forth in the amended complaint, as to the $1750, the defendant was a director of the bank, or that he ever was its acting cashier. It takes issue as to the declaring of the 25 per cent dividend, and denies that the defendant, as a director of the bank or otherwise, was present at the meeting of the board at which it was declared, or that he united in such alleged action with any knowledge of the insolvency of the bank or otherwise, and denies that he received. the $1750 as his proportion of such dividend, but admits that he received $500 as a dividend of 25 per cent upon the 20

shares.

The cause was tried before the court and a jury, and a verdict was rendered for the plaintiff, for $7833.33, and a judgment for the plaintiff for that amount was entered. The defendant has sued out a writ of error to review that judgment. There is a