McDonald v. McDougall

Citations

• 86 Wash. 339
• 150 P. 625
• 1915 Wash. LEXIS 1012

Syllabus

<p>Limitation or Actions — Fraud—Discovery — Diligence — Question eor Jury. In an action for relief upon the ground of fraud, to be commenced, under Rem. & Bal. Code, § 159, subd. 4, within three years after discovery by the aggrieved party of the facts constituting the fraud, whether plaintiff discovered, or by the use of reasonable diligence could have discovered, the fraud so as to bar the action, is a question for the jury, where it appears that in 1908 plaintiff paid defendant $15,000 to invest in mining stock upon the same basis as defendants and others had paid, which was five cents a share, but defendant purchased stock for plaintiff at fifteen cents a share; that plaintiff became a director in the corporation and had access to the books showing the prices others had paid, and there was evidence that he knew what others had paid; but plaintiff testified that he had the utmost confidence in the defendant, his suspicions were not aroused, his attention was not called to the records, he had no actual possession of the books, and no notice of the fact that his stock had been purchased at a greater sum than others had paid until December 1, 1913, and the action was commenced in February, 1914.</p> <p>Trial — Instructions — Issues — Prejudice — Other Correct Instructions. In an action to recover for fraud in purchasing mining stock, at a price in excess of the price paid by defendant and others, contrary to the agreement of the parties, an instruction to the effect that defendant could not recover if he had notice, or as a reasonable man should have had notice of “the price he was paying for stock,” is erroneous, as he admittedly knew such fact, and the issue was as to his knowledge as to the price paid by others; and the error is not cured by other correct instructions, given on the Saturday previous, where the erroneous instruction was given the next Monday morning as an additional instruction.</p>