
    SHERMAN, Respondent, v. HARRIS, Appellant.
    (167 N. W. 325.)
    (File No. 3593.
    Opinion filed April 12, 1918.)
    Damages — Deceit in Bank Stock Sale — Worthless Assets, As Measure of Damages — “Majority Rnle,” Followed.
    In an action for damages for deceit through false representations as to value of the assets of a hank, some stock in which was sold to plaintiff, held, that a recovery as damages of. the amount represented by diminution in value of the hank assets to the extent of face value, of certain notes found hy trial court to he worthless was the true measure of damages recoverable, whether considered under the “majority rule,” or the “minority rule,” as laid down in Hallen v. Martin, 40 S. D. 314, 167 N. W. 314; since, defendant having received cash for the stock, and plaintiff having received stock at par of a value less than par, the difference between par and actual value thereof represents damages under either rule.
    Whiting, P. J., concurring specially.
    Appeal from Circuit Court, Walworth County. Hon. Joseph H. Bottum, Judge.
    On rehearing.
    Former decision affirmed.
    For former opinion, See 36 S. D. 50, 153 N. W. 925.
    
      W. M. Potts, andl L. W. Crofoot, for Appellant.
    
      C. W. Stihmll, fior Respondent.
   SMITH, J.

This case is before us on rehearing limited by the order granting rehearing to the single question of the measure of damages. All other questions upon the appeal are finally disposed of by the former decision which.' will be found in- 36 S. D. 50, 153 N. W. 925, Ann. Cas. 1917C, 675. The transaction embraced! a cash purchase of bank stock at par. The deceit alleged 'Consisted of false representations as to the -value of the assets of the bank. The trial court found, in substance, that the value of the stock was impaired) to the extent of the face Value of certain notes -inoludled in the átesete of the bank, which- notes were found by the court to be worthless, were rejected' by the federal examiner, which was followed by .an assessment upon the stockholders of the bank to. malee good the deficiency in the bank’s -assets so occasioned. Plaintiff alaliimed and I was permitted to recover as damages, the .amount paid! upon the assessment. •

The only question presented at this time is whether the amount recovered represents -the correct measure of . damages resulting from the deceit (practiced upon the purchaser of the stock. When the rehearing wlas granted a doubt existed in the minds |o|f the members) of the count as to the correct rale of damages ini deceit stations, which wa's Involved .in the prior appeal of Hallen v. Martin, 167 N. W. 314, then pending before this- court. The decision in that case settled thiait question by the adoption of what is there designated the “majority” rale. However,- a reexamination of the findings of fact leads' us to. tire conclusion ■that in. the present case the damages recoverable would be the sdme under either rule, and that appellant has suffered no prejudice by reason of the damages awarded by -the trial court.

The defendant having received1 casia for the stock, and. the plaintiff having received stock at par of a value less than par, the difference between the par and actual value of the stock i*epresenlts the damages under either rule.

We are not to be understood as holding thiait the amount of the ¡assessment of stockholders by the ¡federal authorities in itself represents ¡the correct measure of 'damages for the deceit, but that .the assessment ¡in this case is substantiality the same .amount as the da'ato'ges for the deceit, and the error, if (any, of the trial court wia-s therefore without prejudice.

The order and1 judgment of the trial court and the conclusions anntounced! in our former 'decision are affirmed.

WHITING, P. J.

(concurring ¡specially). The trial- ¡court re-

fused to adopt either ¡one of the accepted rules of damages -for deceit, but held the wrongdoer for the ¡amount of an ¡assessment upon ,ttho bank made by the federal examiner, a long .period -after ■the (purchase of the bank.' That the ruling of the trial court was error is too dear to cali for discussion. It is equally clear that the .amount of damages under the “majority” rule (adopted by this count án Hallen y. Martin) would have been greater than the amount of .such .assessment, inasmuch asi it would have included interest for a considerable period. It follows that the error wlas not prejudicial to appellant. I cannot agree that the damages under -the so-called “minority” rule would have been the same as under the “majority” rule, as it-appears perfectly clear that -it would melt. It therefore cannot conauir in the statement to that effect in the'majority decision. However such- statement i's but obiter.  