The judgment should be reversed on the ground that the cause of action alleged in the. complaint was not made out and the motion *88to dismiss at the close should have been granted.. The fraudulent statements and acts which the complaint alleges to have induced the plaintiff to sell her shares of stock to the defendants were (1) that the defendants represented to the plaintiff that on account of losses in the business the company could not at that time (July, 1899) pay a semi-annual dividend of more than three per cent, and that it was doubtful whether it should ever be able to pay larger dividends, (2) that they "refrained from declaring a just and adequate dividend, and declared one of. only three per cent semiannually, (3) that they increased their salaries. There is no evidence that the statenient as to losses was false, but the contrary. As to the statements about dividends, and thp declaring of the 'dividend, the evidence shows that the regular semi-annual business statement of the company in writing was issued prior thereto, showing the earnings, assets and profits, and that the plaintiff heard it read or the substance of it stated at the meeting of the directors, and was given a copy of it, which she produced at the trial, There is no evidence that this statement was false in .any particular, or that the books of the company were 'falsified, about which much was made-'on the,trial. All the- profits, $8,843.66, were declared out in dividends, except $4,343.60 which was retained as surplus. For a company with a capital of $150,000 and sales amounting to as much to early that much of a surplus was reasonable. The expression of doubt whether the. company would thereafter pay larger dividends was a matter of opinion upon, which fraud cannot be based. It was expressed on facts open to the plaintiff and known to her. As to the increase of salaries, it was a fact,-not a falsehood, and the law gave the plaintiff a remedy if it was excessive. But the complaint does not' allege it was excessive.. Moreover, the plaintiff, having sold her stock with knowledge of the increase, cannot now complain of it as fraudulent. If it was a, fraud she acted with full knowledge of it.
To reverse the judgment on the ground that the verdict was excessive would be to instruct the trial-court that the evidence made out the cause of action, and that would insure to the plaintiff a verdict on the second trial.
Judgment and order reversed and new trial granted, costs to abide the final award of -costs.