Opinion
No. 31616.
April 29, 1935.
LICENSES.
Buyer of stock held not entitled to recover against corporation under Blue Sky Law for fraud in sale thereof, where there was no proof that corporation ever qualified under Blue Sky Law (Laws 1916, chap. 97).ON SUGGESTIONS OF ERROR. (In Banc. June 3, 1935.) [161 So. 755. No. 31616.]
APPEAL AND ERROR.
Supreme Court must review case on theory on which it was presented below, especially theory on which case was submitted to jury.
APPEAL from the circuit court of Pearl River county.
HON. HARVEY McGEHEE, Judge.
Suit by Mrs. Pearl House May against the Mississippi Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
On suggestions of error. Suggestions of error overruled.
Eaton Eaton, of Gulfport, Heidelberg Roberts, of Hattiesburg, J.M. Morse, of Poplarville, and Wilbourn, Miller Wilbourn, of Meridian, for appellant.
It is not the law, and, we submit, never has been and never should be, that the failure to perform a promise may, in the absence of a conscious purpose not to perform it, and in the absence of any design or intent to deceive or defraud by virtue of the making of the promise, be made the basis of an action for fraud. If, forsooth, that were the law, then in each and every case for breach of contract, the opposing party would have the election, either to sue for breach of the contract or for fraud. Carrying it on to a logical conclusion, the result would be that every unfulfilled promise would warrant an action for fraud, and suits for damages for the breach of contract and suits for specific performance of contracts would pass into innocuous desuetude.
26 C.J., page 1087, par. 25, page 1093, sec. 26, and page 1095; 51 A.L.R., pages 63 to 67; Restatement of Law of Contracts, sec. 473; McCain v. Cochran, 120 So. 823, 153 Miss. 237; Rogers v. Harris, 76 Okla. 215, 184 P. 459; 12 R.C.L., page 261.
No authority can be found applying to fraud predicated upon an alleged false and fraudulent promise the doctrine that it is unnecessary to show any intent to deceive. The Mississippi cases wherein it is said it is unnecessary to prove an intent to deceive all relate to a false representation of an existing physical fact.
McNeer Dood v. Norfleet, 113 Miss. 611, 74 So. 577; Lundy v. Hazlett, 112 So. 591, 147 Miss. 37; Oldham v. Memphis Stone Gravel Co., 111 So. 357, 145 Miss. 851; Vincent v. Corbett, 94 Miss. 46, 47 So. 641; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 477; Davis v. Heard, 44 Miss. 30; Alexander v. Meek, 96 So. 101, 132 Miss. 298; McFerrin v. Taylor, 3 Cranch 270, 2 L.Ed. 436; Smith v. Richards, 13 Peters 26, 10 L.Ed. 24; Cross v. McKee, 53 Miss. 536; Drug Co. v. Mercantile Co., 86 Miss. 423; Townsend v. Hurst, 37 Miss. 579; 27 C.J. 44; Witt v. Cuenod, 50 P. 328; Sternberg v. Trueblood, 186 S.W. 836; Smith v. Vosika, 203 N.W. 428; 14 C.J. 606 to 609; 51 A.L.R. 49; Southern Development Co. v. Silva, 126 U.S. 247, 31 L.Ed. 678; Sawyer v. Prickett, 86 U.S. 146, 22 L.Ed. 105; Bartel v. Walton Whann Co., 92 Fed. 13; Collins v. Collins, 150 So. 660; Clopton v. Cozart, 13 S. M. 363; 1 Black on Rescission and Cancellation, page 47, sec. 24; White v. Stewart, 145 So. 747; A.L.I. Rest. Cons., sec. 474; Deshatreaux v. Batson, 159 Miss. 236, 131 So. 346; Walker v. M. O.R.R. Co., 34 Miss. 245; Saffold v. Barnes, 39 Miss. 399; Wight v. Shelby R.R., 16 B. Mon.; Irvin v. Turnpike Co., 2 Penn. 466; Andrews v. Ohio Miss. R.R. Co., 14 Ill. 169; Ellison v. M. O.R.R. Co., 36 Miss. 572; Reed v. Cooks, 55 S.W.2d 275; Kennebec v. Barton, 122 A. 852, 123 Me. 293; Railroad v. Anderson, 51 Miss. 829; Bucher v. Federal Baseball Club of Baltimore, 101 A. 535; Howard v. Merrick, 27 P.2d 891.
Mere proof of failure to perform a promise is not sufficient to establish the fraud.
Maguire v. Maguire, 214 N.W. 666; C.T. M.C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 St. Rep. 39; Carr v. Craig, 138 Iowa, 526, 116 N.W. 721; Smith v. Vosika, 163 Minn. 12, 203 N.W. 428; Roman v. Lorence, 162 Minn. 198, 202 N.W. 707; Hansen v. Daniel Hayes Co., 152 Minn. 222, 188 N.W. 317; Arcade Inv. Co. v. Hawley, 139 Minn. 301, 166 N.W. 347; Holmes v. Wilkes, 130 Minn. 170, 153 N.W. 308; Cox v. Edwards, 120 Minn. 512, 139 N.W. 1070; Nelson v. Shelby Mfg. Imp. Co., 96 Ala. 515, 11 So. 695, 38 Am. St. Rep. 116; Brison v. Brison, 75 Cal. 525, 17 P. 689, 7 Am. St. Rep. 189; Lawrence v. Gayette, 78 Cal. 126, 20 P. 382, 12 Am. St. Rep. 29; Cerny v. Paxton Gallagher Co., 78 Neb. 134, 110 N.W. 882, 10 L.R.A. (N.S.) 640; Sallies v. Johnson, 85 Conn. 77, 81 A. 974, Ann. Cas. 1913A 386; Blackburn v. Morrison, 29 Okla. 510, 118 P. 402, Ann. Cas. 1913A 523; 12 R.C.L. 261, sec. 28; 26 C.J. 1093, secs. 26 and 1087, sec. 25; Phelps v. Aurora State Bank, 186 Minn. 479, 243 N.W. 682; Crosby v. Crescent Oil Co., 255 N.W. 855; Markowsky v. Rubenstein, 80 So. 278.
Signing the written applications for the stock, as she did, and then accepting and retaining, as she did, the stock certificates mailed her by appellant after reading part of the certificates, and noting the fine print thereon, which was difficult to read, constituted a waiver of the contention now made that the alleged prior promises constituted a fraud.
Milling Co. v. Russell, 89 Miss. 437, 42 So. 233; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Home Mutual Fire Ins Co. v. Patterson, 71 So. 739, 111 Miss. 420; Springfield Fire Marine Ins. Co. v. Nix, 138 So. 518, 162 Miss. 669; Corley et al. v. Reed et al., 164 Miss. 678, 145 So. 241; American Oil Co. v. Williamson, 122 So. 488; Gunter et al. v. Henderson-Molpus Co., 115 So. 720; Continental Jewelry Co. v. Joseph, 140 Miss. 582, 105 So. 639.
Failure of appellee to notify the appellant promptly, as soon as she knew, or should have known of the alleged fraud, defeats her right to rescind.
Restatement of the Law on Contracts, sec. 485; Selma v. Anderson, 51 Miss. 829; Collins v. Collins, 150 So. 669; 13 C.J., Contracts, page 616, sec. 671.
It is not requisite that the defrauded party shall be acquainted with all the evidence constituting the fraud before the duty to act by way of rescission arises.
Richardson v. Lowe, 149 Fed. 625.
Anything which will put a party on inquiry is notice of everything to which such attention or inquiry may lead.
Baldwin v. Anderson, 103 Miss. 462, 60 So. 578; Parker v. Foy, 43 Miss. 260; Figh v. Tuber, 82 So. 495; 13 C.J. 611, section 653.
When a party claims to have been defrauded, he has the election, either to pursue the remedy of rescission, or to affirm the contract and claim damages for the deceit. He cannot do both, and is bound by his election.
Wilson v. New U.S. Cattle Ranch Co., 73 Fed. 994; Elgin v. Snyder, 115 P. 280; 2 Black on Rescission and Cancellation of Contracts (2 Ed.), sec. 542, page 1336; Grant v. Lovekin, 132 A. 342.
Immediately after the purchase of her stock, the appellant began to pay her dividends, the checks therefor being introduced in evidence, and she was immediately put on notice of the fact that she was not receiving interest on her money but she was receiving dividends as a stockholder. This was nearly four years before she offered to rescind.
Section 484, Restatement of Law of Contracts; Ga. Pac. R.R. Co. v. Brooks, 66 Miss. 583, 6 So. 467; Whittington v. Cotton, 130 So. 748, 158 Miss. 554; Scott v. Freeland, 7 S. M. 418; Ware v. Haughton, 41 Miss. 382; Pintard v. Martin, 1 S. M. 126; Hall v. Thompson, 1 S. M. 487; Commercial Bank v. Lewis, 13 S. M. 226; Johnson v. Jones, 13 S. M. 580; Alig v. Lackey, 114 Miss. 396, 75 So. 139; Carter v. Preston, 51 Miss. 523; 2 Black on Rescission of Contracts (2 Ed.), page 1337, sec. 542; 4 R.C.L., Permanent Supplement Edition, sec. 26; 14 C.J. 594 and 596; Perkins v. Merchants Farmers Bank, 60 So. 131, 103 Miss. 179; Wingo v. First National Bank of Pontotoc, 60 So. 133; 10 Cyc. 425; Hamm v. Field, 41 Miss. 712.
There is neither sufficient allegation nor sufficient proof to show so far as the record goes that appellant should have taken out a license under Chapter 97 of the Laws of 1916, if in fact it did not take out such a license.
Estes v. Memphis Charleston R.R. Co., 152 Miss. 814, 119 So. 199; Miss. Power Co. v. Sellers, 160 Miss. 512, 133 So. 594.
So far as this record is concerned, Chapter 97, Laws of 1916, does not come into play unless the court should hold that section 6 was applicable to the transaction regardless of whether or not the company had or had not procured a license to sell its stock pursuant to the terms of Chapter 97 of the Laws of 1916. But we submit that the court cannot conclude under this record in any event that the license was required or was not procured in the absence of allegation or proof on the subject either way. The court could only presume that the license was procured and the bond was given if necessary or required. Therefore, Section 6 is not applicable unless the court also finds that the representations which the appellee testified had been made to her constitute "misrepresentations of fact concerning the stock."
White v. Stuart, 166 Miss. 694, 145 So. 747; Bankers Mortgage Co. v. McMullen, 141 So. 331, 165 Miss. 382.
Hathorn Williams, of Poplarville, and Earle N. Floyd, of Jackson, for appellee.
The representations, promises and guarantees made by appellant constitute what in law is called a contractual promise with the undisclosed intention of not performing the same, and is actionable fraud.
A.L.I. Rest. Cont., par. 473; Gross v. McKee, 53 Miss. 536; Drug Co. v. Planters Mercantile Co., 86 Miss. 423, 38 So. 209; Howie Bros. v. Pratt Co., 35 So. 216; Townsend v. Hurst, 37 Miss. 679; White v. Stewart, 145 So. 747; National Finance Corp. v. Atkins, 150 So. 351; Southern Building Loan Assn. v. Argo, 141 So. 545; Bankers Mortgage Bond Co. v. Rosenthal, 145 So. 456; Southern Building Loan Assn. v. Dinsmore, 144 So. 21; Southern Building Loan Assn. v. Bryant, 144 So. 367; Southern Building Loan Assn. v. Wales, 138 So. 553; Texas Employers' Ins. Assn. v. Knouff, 297 S.W. 805; Riedel v. C.R. Miller Mfg. Co., 18 S.W.2d 264; Tatum v. Orange N.W. Ry. Co., 245 S.W. 231; Mack Mfg. Co. v. Oding, 244 S.W. 156; Carley v. May, 167 S.W. 725; Foster v. Dwire, 51 N.D. 581, 199 N.W. 1017, 51 A.L.R. 21; Councill v. Sun Ins. Co., 146 Md. 137, 129 A. 229, 51 A.L.R. 29; Palmetto Bank Trust Co. v. Grimsley, 134 S.C. 493, 138 S.E. 437, 51 A.L.R. 42; see also extensive notes and authorities cited therein, 51 A.L.R. 63 to 77; Hightower Crawford v. M.J.K.C.R.R. Co., 36 So. 82.
The representations, promises and guarantees made by appellant constituted misrepresentations of material fact concerning said stock, under Chapter 97, Mississippi Laws of 1916, commonly called the "Blue Sky" Law, and entitled appellee to recover under the second count.
Irving v. Bankers Mortgage Co., 151 So. 741; Guaranty Mortgage Co. v. Wilcox, 218 P. 133, 30 A.L.R. 1324; Reilly v. Clyne, 234 P. 35, 40 A.L.R. 1005; First National Bank v. Leeton Bros., 95 So. 445; Bankers Mortgage Co. v. McMullan, 141 So. 331; Edward v. Ioor, 205 Mich. 617, 172 N.E. 620, 15 A.L.R. 256; Landwehr v. Lingenfelder, 249 S.W. 723; Creasy Corp. v. Enz Bros. Co., 177 Wis. 49, 187 N.W. 666; Schmidt v. Stortz, 208 Mo. App. 439, 236 S.W. 694; Stewart v. Brady, 300 Ill. 425, 133 N.E. 310; Domenigoni v. Imperial Live Stock Mortgage Co., 209 P. 36; Biddle v. Smith, 256 S.W. 453; Otis v. Parker, 187 U.S. 606, 47 L.Ed. 323; Hall v. Geiger-Jones Co., 242 U.S. 539, 61 L.Ed. 480; Merrick v. Halsey Co., 242 U.S. 568, 61 L.Ed. 498; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 61 L.Ed. 493; Ice Cream Co. v. Iowa, 242 U.S. 153, 61 L.Ed. 218; Ex parte Kreutzer, 204 N.W. 602; People v. Love, 142 N.E. 204; Bank v. Blades, 247 S.W. 806; 15 A.L.R. 262; 24 A.L.R. 524; 27 A.L.R. 1169; 30 A.L.R. 1331; 40 A.L.R. 1014; 57 A.L.R. 1004; 54 A.L.R. 499; 25 R.C.L., page 675, par. 13; 6 R.C.L., page 121, par. 121.
It is respectfully submitted (1) that the contention of appellant that the Mississippi "Blue Sky" law is unconstitutional is wholly without merit; and (2) if the provisions with reference to the attorney's fee should be held to be unconstitutional, the balance of the statute will stand, and appellee was at least entitled to recover her money back with interest under the "Blue Sky" law.
The case of Stewart v. White, 166 Miss. 694, 145 So. 747, should not be accepted as stare decisis of the questions involved in the instant case, as the literal meaning of the word "complied" as contained in the opinion in the Stewart case was not necessary or germane to that decision and was not intended to be construed as in the opinion here, the same having been mere dicta and if construed otherwise, conflicts with the Irving v. The Bankers Mortgage Company, 151 So. 741, as well as with other decisions of this court.
Section 1 of the Blue Sky Law, Chapter 97, Laws of 1916, expressly provides that "every corporation" of the designated class, "shall be subject to the provisions of this act" and under this and other provisions found in the act, the duty of a corporation to comply is mandatory under penalty of the criminal law, and not optional as held by the court. The appellant was within the designated class. Bankers Mortgage Co. v. McMullan, 141 So. 331; Tatum case, 141 So. 335; Hall v. Geiger-Jones Co., 242 U.S. 539, 61 L.Ed. 480, L.R.A. 1917F 514, 37 Sup. Ct. Rep. 217, Ann. Cas. 1917C, 643, 230 Fed. 233; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 61 L.Ed. 493, 37 Sup. Ct. Rep. 224; Merrick v. N.W. Halsey Co., 242 U.S. 568, 61 L.Ed. 498, 37 Sup. Ct. Rep. 227, 228 Fed. 805; Quartette Music Co. v. Haygood, 67 So. 211, 108 Miss. 755; Kneeland v. Emerton, 280 Mass. 371, 183 N.C. 155, 87 A.L.R. 1.
The second count of the declaration was upheld by the proof, irrespective whether the proof be interpreted under the Blue Sky Law or the common law. If the Blue Sky Law be regarded, as we submit it should be, as a mandatory statutory plan for the supervision of the sale of securities, compliance with it becomes uniformly obligatory upon all those within its category. Then, we submit, that the failure of the Power Company to comply therewith gives right under the common law to recovery on the ground that the sale of its stock in violation of this penal and mandatory law constitutes in itself a right of recovery, irrespective of any intended fraud, misrepresentations, bad faith or lack of value in the stock so sold.
Boss v. Silent Drama Syndicate, 255 P. 225; McDonald v. Reich Lievre, Inc., 281 P. 106; Moe v. Coe, 263 P. 925; Noll v. Woods, 203 N.W. 949; Pennicard v. Coe, 263 P. 920; 13 C.J., Contracts, para. 356; 17 R.C.L., Licenses, para. 73; Pollak v. Staunton, 293 P. 26; Kneeland v. Emerton, 87 A.L.R. 1, 98; Edward v. Ioor et al., 205 Mich. 617, 172 N.W. 620, 15 A.L.R. 259; Citizens Bank of Hattiesburg v. Griggsby, 155 So. 684.
Argued orally by R.E. Wilbourn and Rowland W. Heidelberg, for appellant, and by E.W. Williams and F.C. Hathorn, for appellee.
The appellee was plaintiff in the court below, and filed two separate suits against the appellant for deceit and fraud in the sale of preferred stock issued by it. The appellee later filed an amended declaration including two counts in each case, one under the common law for fraud and deceit, and one under the Blue Sky Law, chapter 97, Laws of 1916. The allegations as to the purchase of the stock under the first count, the common-law count, was that in the early part of 1930 the appellee purchased two thousand dollars worth of preferred stock in the Mississippi Power Company, paying therefor in cash, having been induced to buy same on representations made to her by an agent of the Mississippi Power Company that it would guarantee the payment of six per cent. on the money so invested, said interest to be paid quarterly, and that the appellee could, at any time, surrender her stock and receive from the company in cash the amount paid therefor. She alleged that she did not desire to buy the stock, for the reason that she was a widow with children to educate and might need her money at any time, but the agent assured her that she could get her money at any time she desired it. She stated in her evidence that she asked the agent if her stock would have to be sold for her to get the money, and she was told that it would not have to be sold, that she could either turn the stock over to a local agent to be sent to the company and a check would come to her by return mail, or she could go to Gulfport, the main office of the company, and get her money on surrender of the stock.
The appellant pleaded the general issue, giving notice thereunder that it would offer evidence to prove that the certificate of stock issued to the appellee contained provisions that it was subject to the charter and statutes of Maine under the laws of which it was chartered, and that the purchaser was charged with knowledge that said stock was issued subject to such provisions. The appellant also filed special pleas setting up defenses under the common-law count, but the view we take hereof renders elaboration of that count unnecessary. The appellant also pleaded the three-year statute of limitation and the one-year statute of limitation as to attorney's fees. In the suit on the two thousand dollars worth of stock, there was a claim for attorney's fees amounting to six hundred sixty-six dollars and sixty-six cents, and in the suit on three thousand dollars worth of stock there was a claim for attorney's fees amounting to one thousand dollars, as well as for principal and interest in each case.
There was no proof under the second count of the declaration that the appellant had ever qualified and given bond under the Blue Sky Law, and the declaration did not allege specifically that it had given bond and conformed to the Blue Sky Law of Mississippi.
When the evidence was closed, the appellant requested a peremptory instruction as to the second count under the Blue Sky Law, which was refused. The appellee, plaintiff, requested and was given an instruction reading as follows: "The court instructs the jury for the plaintiff under the second count of the declaration that if you believe from a preponderance of the evidence in this case that the defendant, Mississippi Power Company, was a private foreign corporation organized for profit at the time it sold the said shares of stock to plaintiff, and that said sales of said stock by said defendant to plaintiff were sales of same to increase the capital stock of said defendant, and that any part of the proceeds derived from said sales of said stock was used for the payment of a commission; and if you further believe, from a preponderance of the evidence in this case, that said defendant made any misrepresentations of material fact concerning said stock to plaintiff in the sale of said stock to plaintiff, then it is the sworn duty of the jury to find for the plaintiff and assess her damage at the sum of five thousand dollars, together with interest thereon at the rate of six per cent per annum from October 1st, 1933, and a reasonable attorney's fee to be fixed by the jury."
The verdict of the jury read: "We, the jury, find for the plaintiff and assess her damages in the sum of six thousand five hundred dollars, which includes a reasonable attorney's fee."
The suits were consolidated, as they presented the same issues except as amounts, dates, etc., and the jury was instructed that they were to be consolidated and tried as one suit. It thus appears that the jury found on the second count of the declaration, as the two suits were only for five thousand dollars, with interest.
There was a motion for a new trial, which was by the court overruled, and from this judgment this appeal is prosecuted.
The appellee having declared on the second count in each case, the general issue having been pleaded, and there being no proof that the Mississippi Power Company had ever qualified under the Blue Sky Law of this State, and as the appellant's request for a peremptory instruction was refused as to that count, we think there was reversible error in such refusal, and that the appellant's request for a peremptory instruction should have been granted. See White v. Stewart, 166 Miss. 694, 145 So. 747, 748, where it was held that, where a company issuing stock had not complied with the Blue Sky Law, no recovery could be had thereunder. The court there said: "One of the appellee's contentions is that a right of action against the appellants is given her by section 4186 [Code 1930], but there can be no merit in this. That section applies only to suits against investment companies that have complied with the Blue Sky Law, and, moreover, the appellants are not an investment company, but are brokers, selling stock, bonds, and other securities not issued by them, but by others. The section of the statute within which appellants must be brought in order for the statute to apply to them is section 4188, which defines and regulates dealers in securities issued by investment companies."
The Blue Sky Law was enacted to enable people to inquire either of the seller or the secretary of state, before buying stock, as to whether that law has been complied with by the seller. If it has been, then the buyer may rely upon its security and the rights it gives. One who does not so inquire has no one but himself to blame; and where, in fact, it has not been complied with, the buyer has no right under it, but is left to the common law, or statutes, for redress.
The Blue Sky Law, chapter 97, Laws of 1916, is materially different from the common-law action for fraud and deceit, or the equitable action of rescission. Under the Blue Sky Law, any material representation made by a selling agent, whether in the scope of his authority or not, where such representation is false, gives the buyer of stock the right to bring suit for rescission, and said act also provides for attorney's fees.
For the error presented, the judgment of the court below is reversed, and judgment is entered here on the second count in favor of the appellant. The issues involved under the first count of the declaration are not decided herein, but the cause will be reversed and remanded for proceedings under that count.
Reversed and remanded.
ON SUGGESTION OF ERROR.
Appellee, in her suggestion of error, argues in effect that since she failed to allege and prove that the appellant had actually qualified under the Blue Sky Law (Laws 1916, ch. 97), we should consider the case as if the facts were shown that appellant had not qualified thereunder, and that as a consequence we should hold the sale void, entitling appellee to recover the amount paid by her with interest, but without attorney's fees; and appellee relies on Kneeland v. Emerton, 280 Mass. 371, 183 N.E. 155, 87 A.L.R. 1, and the cases cited in the notes to 87 A.L.R., pp. 98-101.
But appellee did not sue in her second count on the theory that appellant had not in fact complied with the Blue Sky Law. On the contrary, she drew her declaration and presented her instructions to the jury on the theory that the appellant, whether it had or had not complied with the Blue Sky Law, was bound by that law, and as to any recovery upon it, as fully and to the same extent as if the defendant had in fact and in every respect complied; and we must, of course, review a case here on the theory on which it was presented in the trial court, especially as to the theory on which it was submitted to the jury. Williams v. Lumpkin, 169 Miss. 146, 153, 152 So. 842. Appellee failed, as already mentioned, to make the proof of an element essential to the maintenance of an action upon the Blue Sky Law, namely, she failed to prove that appellant had qualified under that law, with the result that we had no option except to reverse.
We held, and now reaffirm our intention to hold, that a plaintiff cannot recover upon the Blue Sky Law unless the selling company has complied therewith, and this must be affirmatively proved. It was not necessary to go further than that to dispose of the present case under the second count of the declaration. However, in our former opinion there appears the following language: "The Blue Sky Law was enacted to enable people to inquire either of the seller or the secretary of state, before buying stock, as to whether that law has been complied with by the seller. If it has been, then the buyer may rely upon its security and the rights it gives. One who does not so inquire has no one but himself to blame; and where, in fact, it has not been complied with, the buyer has no right under it, but is left to the common law, or statutes, for redress." While this language accurately reflects the discussions in conference before the opinion was written, we have concluded, upon a mature reconsideration of the subject, to withdraw the quoted language, and to allow the opinion to stand as if that language, unnecessary to a decision, had never appeared in it. We leave undecided, therefore, and until those questions shall be definitely presented on full argument, whether an intending purchaser must inquire or whether he need not inquire as to the seller's compliance with the Blue Sky Law; also whether a sale, by one who should comply, but is shown not to have done so, is void, or voidable or valid; and also we leave undecided anything upon the statutes of limitations in respect to the Blue Sky Law — in fact, with respect to that law, we decide nothing beyond what is stated in the first sentence of this paragraph.
The suggestion of error will be overruled, as well as the suggestion of error filed by appellant.
So ordered.