I do not agree that there should be judgment ordered for defendant. The evidence as to fraud is not so conclusive against the verdict as to justify such order. The defect in the evidence, if any, is not such that we can say as a matter of law that it may not be remedied on the new trial. While the record and the statements thereof in Justice Hilton's dissenting opinion impress me as showing evidence sufficient to sustain the verdict, I would not object to a new trial.
Another reason why I believe judgment should not be ordered is that it seems to me probable that plaintiff has a right to recover his money irrespective of the issue of fraud. The action is one to recover money had and received. He had paid to defendant a sum of $854 to apply on a purchase of stock, under an agreement that he, being an employe of defendant, should be repaid this money at any time if he resigned or ceased to be such employe. He quit and demanded payment. He was told by one of defendant's officers, with whom he was dealing, that on account of lack of available funds at that time of year (in February) and because of some action on the part of defendant's board of directors, payment could not then be made, but was assured by said officer that later in the spring or summer, when funds would be coming in, the money owing would then be paid to him; that in the meantime the officer would issue to him 11 shares of stock for plaintiff to hold until the payment was made. Plaintiff consented to this arrangement and, in reliance thereon, signed the so-called settlement agreement and received the 11 shares of stock. To me it appears that a good cause of action for money had and received was shown; that in equity and good conscience plaintiff is entitled to recover. In equity we do not strictly construe technical terms or words of writings. Plaintiff did not get what he had good cause to believe he was getting by taking the stock and signing the settlement agreement, coupled with the oral agreement of defendant's officer *Page 499 that the defendant would take back the stock and then pay the money owing. Defendant argued that the oral agreement later to pay the money contradicts the terms of the written settlement agreement and so is of no avail. It does not do so in express terms. In the case of Seifert v. Union B. M. Mfg. Co.191 Minn. 362, 254 N.W. 273, a very similar situation was presented. Stock was sold and issued to plaintiff. After the stock was paid for and on delivery thereof, the president of the corporation gave to plaintiff a letter acknowledging receipt of payment and reciting that, in consideration of the purchase, "we agree to sell them" (the shares) "for you or purchase them ourselves, within 30 days after you notify us that you wish to sell them." This agreement was held invalid because the president of the corporation had no authority to make it, but recovery, on equitable grounds, for money had and received, was sustained. In the present case, the agreement was held of no avail because fraud was not sufficiently shown. I see no material difference as to the law in these two cases. The only difference in the facts is that in the Seifert case the agreement to repurchase was in the form of a written letter, while in the present case it was oral. *Page 500