(dissenting.) I am unable to agree with the result reached by my colleagues; though I fully agree that plaintiff is not a holder in due course.
In the former opinion of this court, the majority were of the view that the trial court erred in directing a verdict, and based such holding on the ground that the representations made to defendant were not such as could form the basis of a claim that the note was procured through fraud and deeeit. With the result then reached I agreed; although I could not subscribe to some of the reasoning found in the majority decision.
Respondent virtually concedes that there is but one representation upon which he can rely in support of the action of the trial court—this is evidenced by his brief, wherein he relies solely upon the alleged representation that the certificate of stock would be issued at once. This representation or promise was not fulfilled; but, even so, how can it support a directed verdict in favor of the defendant? There is no evidence but that, at the time this promise was made, it was made in good faith, with full expectation that it would be carried out. If it was promised that the stock should bear 8 per cent, interest, and the certificate which was thereafter issued failed to so provide, I know of no rule of law that would allow the defendant, after receiving the stock, to retain the same and refuse to' pay any part of the note given therefor. Afc best, we have proven but a partial failure of consideration. Defendant never attempted to rescind the contract by returning or offering to return the stock' and demanding back *280his note; in fact, he produced the certificate of stock and introduced it in evidence upon this trial.
Although no other representation seems to' be relied on by respondent in his brief, let us note the others. One representation was that'the note should be void if a certain amount of stock was not subscribed at a certain time. There was evidence, sufficient to go to the jury, showing that the amount was oversubscribed at that time. All the other representations were ’but promises or representations as to the future. There was not one word to show that they were known to be false by the party making them; and, so far as they constituted promises, there was no evidence to show that it was not expected by the promisor that the promises would1 be carried out.- Defendant himself testified that he realized that promises as to the future were of such a nature that he should not rely upon them; and, as I read the record, it clearly shows that he admitted that he did not rely on such promises.