(concurring):
It being established by the testimony of the plaintiff’s own witnesses, and not disputed, that the alleged fraudulent prospectus was prepared by Archer Brown from information furnished him ,by Edward F. Browning, it was incumbent upon the plaintiff to establish either that the prospectus did not correspond to the infoimation furnished, or that said Archer Brown knew that it was false. If there was no evidence to establish either of those propositions the court erred both in refusing the request to charge, discussed by Mr. Justice. ¡Rich, and in denying the motion for a non-suit. Said prospectus furnishes internal evidence that the facts stated by it .were not within the personal knowledge of the signers, and any one reading it would so understand. The plaintiff, who had the burden of establishing intention to deceive, and who brought his action after the death of the person charged with that intent, omitted to call said Browning as a witness, and, if the defendants can invoke the presumption of innocence, we must assume that the prospectus corresponded to the information furnished said Archer Brown. But I think a jury could say that a personal inspection of the properties of the Cherokee Company,would have disclosed that they had been idle for a long time, and a jury might infer that the pos* sessor of that knowledge would know that said company had not been prosperous. Whether the hearsay testimony of J. Hull Browning to the effect that said Brown inspected said properties was sufficient on this point, I do not now pass upon. In my opinion'the jury must have understood from the judge’s charge • that they could find intention to deceive from carelessness on said Brown’s part in making his investigations. ■ This point is presented-by, an exception, and if the charge wárrants that construction we must agree that an erroneous rule was charged, very prejudicial to *566the -defendants. But "whatever view of .the questions stated supra we may, take, we must agree, I think, that there is not sufficient competent evidence in this case upon which, a jury could base a verdict for damages. Of -the four alleged misrepresentations, enumerated in the opinion of Mr. Justice- High, there is’no pretense that there was any testimony, to show the falsity of the fourth, and I have searched the record in vain to .find any to. establish that of the second, .namely, “ that the actual cash’ outlay upon the property of the Cherokee Iron'Company "was upwards, of $-800,000.” ' This, of course, refers to- the expenditures made before the. acquisition of the'property by'the Alabama and Georgia Iron. Company, and the testimony of 'the only witness on the ".subject is" that in 1818 $350,000 had been expended on the property, and that from that time on very large expenditures were made in improving the property "by Col. West, the amount of which the.witness did not pretend to state: The third alleged" misrepresentation was contained in a paragraph headed “Estimated earnings,”, and. its statement of" the cost of" coke' and charcoal iron at the Cherokee, furnace was obviously, an estimate based on the cost of the different elements entering' into the production of coke or charcoal iron, namely, coke of charcoal^ limestone, ore and labor. There was no evidence whatever to show that this statement was not in accordance with the. information furnished Archer .'Brown, nor was" there any evidence of the. cost, at the ,time ^referred to in said prospectus, of the different elements'entering into said estimate. The only evidence upon this subject related" tó a time - prior to 1888 and, to one period after .said Alabama and Georgia Iron’ Company began to operate the property, hut there was no proof of the relative conditions. Assuming, however, that there \v.as. proof of the falsity of the representations respecting the cost of producing iron and the prosperity of the Cherokee Company, and of an intention to deceive in respect thereto, I am unable ’ to find in the evidence any basis for estimating the effect thereof bn the value of the stock: It is plain that the value of the ■ Cherokee Iron Company furnace was relatively small as compared to that of the extensive ore lands acquired by said Alabama and GeOTgia. Iron- Company, and it is not claimed that any misrepresentations were made respecting said lands. The court correctly charged the jury that- the measure of damages *567was the difference between the actual value of the stock at the time of its purchase and what its' value would have ' been if the alleged false statements had been true. There was no evidence to show the value of the- properties, except the undisputed testimony of a witness called by the plaintiff to the effect that they are now worth $1,500,000; if so, the stock which the plaintiff bought as a speculative venture at forty-one and three-fourths, is now worth more than par, which may account for the fact that ■he lias elected to hold to his bargain and claim damages. There was an attempt made to show market value, but as the stock was not traded in and concededly had no market value, such evidence must be disregarded, even though'we assume that it was properly admitted. Intrinsic, not market, value had to be shown, and the plaintiff made no attempt to show this. But if that had been shown,. I do not see hoW a jury could have told from this evidence how much more the-stock would have been worth had the representations .been true.' The' representation that the Cherokee Company was prosperous and had paid dividends to 1898 may or may not have been material upon the question under consideration. , If its failure to pay dividends was due to extravagant and poor management, as the testimony of the only witness called on the subject at least suggests,-it could have had little bearing o»n the actual worth of the properties; whereas, if it had been due to some inherent, difficulty in the opera-: tion of the properties themselves, the representation would have been material. But hów that -or the representation respecting the cost of producing iron at the Cherokee furnace affected the value of the stock was not shown, although the- question was susceptible of definite proof. The plaintiff cannot have his bargain and recover damages without proving any.
The judgment shquld be reversed.