Goldberg v. Miller

ON PETITION FOR REHEARING The petition for rehearing has been filed in this case by which counsel for plaintiff complain, in substance, that the Court erred in an analysis of the evidence in arriving at its decision herein.

In nearly every case, there are conflicts in the evidence with respect to matters that are not controlling. No doubt, there were conflicts in the evidence on non-controlling matters in this case. Because of the conflicts on non-controlling matters, counsel seem to have missed the full import of the decision in this case.

The vital, essential and controlling matter here surrounds the signing of the paper Exhibit "A", as follows:

"July 12, 1937

"We have this day sold to Joe Miller and Company the J.H. Griffin and Brothers steers contract at ten cents per hundred weight profit.

(Signed) Sam Miller Jack Goldberg."

It was signed — that fact is unquestioned. Was Goldberg misled into signing Exhibit "A" by fraudulent representations on the part of Sam Miller at the time Goldberg affixed his signature?

As stated in the original opinion, Goldberg testified that he signed the paper when Sam Miller told him, "You know, Jack, that they keep a record, a Government record, in the Livestock Exchange Building, and you know my brothers are members of the Livestock Exchange." To which Goldberg replied, "Yes." Then Goldberg testified that Miller said, "Sign this paper and I will send this paper back, so that they can have it for record." Goldberg admits this was said by Miller, in connection with the cow transaction.

At that time, Goldberg knew that the cows were "handled" not by Joe Miller and Company, but by another firm entirely. Why a Government record would have to be made by Joe Miller and Company concerning a transaction in which they merely loaned money to Sam Miller for the purchase of cows to be "handled" by an entirely different firm is incomprehensible.

Goldberg also testifies that the paper he signed was blank when his signature was affixed. If that be true, then it is equally incomprehensible why merely a blank sheet of paper, with the only thing on it being Goldberg's signature, was required to be sent the Livestock Exchange for record. Goldberg's testimony in this connection, as to his being deceived, was quite unworthy of credence.

In any event, it certainly falls far short of the rule that one who alleges fraud must so clearly and distinctly prove the same as to satisfy the mind and conscience of its existence. Kahn v. Traders Ins. Co., 4 Wyo. 419, 34 P. 1059.

The petition for rehearing is denied.

Denied.

RINER, C.J., and KIMBALL, J., concur.