{ "id": 2821660, "name": "Shirley C. TREIDER, Plaintiff-Appellee, v. DOHERTY AND COMPANY, a New Mexico corporation, and Dale Keyes, Defendants-Appellants", "name_abbreviation": "Treider v. Doherty & Co.", "decision_date": "1974-09-18", "docket_number": "No. 1351", "first_page": "735", "last_page": "739", "citations": [ { "type": "official", "cite": "86 N.M. 735" }, { "type": "parallel", "cite": "527 P.2d 498" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "74 N.M. 377", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806574 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0377-01" ] }, { "cite": "61 S.Ct. 175", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1940, "opinion_index": 0 }, { "cite": "311 U.S. 705", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164576, 6164302, 6164371, 6164505, 6164442 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/us/311/0705-05", "/us/311/0705-01", "/us/311/0705-02", "/us/311/0705-04", "/us/311/0705-03" ] }, { "cite": "113 F.2d 988", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1022919 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/f2d/113/0988-01" ] }, { "cite": "69 N.M. 281", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790657 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0281-01" ] }, { "cite": "70 N.M. 380", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850519 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0380-01" ] }, { "cite": "78 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321625 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0101-01" ] }, { "cite": "22 A.L.R.2d 967", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "year": 1950, "opinion_index": 0 }, { "cite": "184 F.2d 86", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1236110 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/f2d/184/0086-01" ] }, { "cite": "51 N.M. 137", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578307 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/nm/51/0137-01" ] }, { "cite": "82 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335523 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0597-01" ] } ], "analysis": { "cardinality": 516, "char_count": 8313, "ocr_confidence": 0.803, "pagerank": { "raw": 3.860190917843371e-07, "percentile": 0.9000146340578157 }, "sha256": "de0adf2b91a096098ff15e94f496a18addac6e809c2c3b1e94031338b486a0ea", "simhash": "1:3aedfe4f23b51aef", "word_count": 1353 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and HERNANDEZ, J., concur." ], "parties": [ "Shirley C. TREIDER, Plaintiff-Appellee, v. DOHERTY AND COMPANY, a New Mexico corporation, and Dale Keyes, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nPlaintiff Treider undertook to invest part of an inheritance in speculative, over-the-counter stocks. She selected Doherty and Company as a broker, who acted through the defendant Keyes. Keyes failed to mention to Ms. Treider certain facts about some of the stocks he sold to her. She sued under \u00a7 48-18-29(A), N. M.S.A.1953 (Repl. Vol. 1966) which states in pertinent part:\n\u201c . . . It is a fraudulent practice and unlawful for any person, in connection with an offer, sale or purchase of any security, directly or indirectly, to:\n\u201cmake any false statement of material fact or to omit to state a material fact necessary in order to make the statements made true in the light of circumstances under which they are made;\nThe jury found for Ms. Treider and awarded her the purchase price and attorney\u2019s fees pursuant to \u00a7 48-18-31, N.M.S. A.1953 (Repl. Vol. 1966).\nDefendants\u2019 appeal raises five points for reversal: (1) standard of proof; (2) agency; (3) remedies; (4) exclusion of an exhibit; and, (5) failure to direct the verdict. We affirm.\nTHE STANDARD OF PROOF FOR VIOLATIONS OF \u00a7 48-18-29(A), SUPRA, SHOULD BE BY CLEAR AND CONVINCING EVIDENCE.\nThe legislature called the unlawful act under \u00a7 48-18-29(A), supra, \u201cfraudulent.\u201d Defendants argue that the standard of proof for actual fraud, proof by clear and convincing evidence, is therefore the proper standard in this case. See Hockett v. Winks, 82 N.M. 597, 485 P.2d 353 (1971). The trial court, they say, erroneously instructed that the proof need only be by a preponderance of the evidence.\nFraud must be proven by clear and convincing evidence because it is an easily made charge that stains the person accused with a mark of dishonesty. Frear v. Roberts, 51 N.M. 137, 179 P.2d 998 (1947) ; Davis v. Commissioner of Internal Revenue, 184 F.2d 86, 22 A.L.R.2d 967 (10th Cir. 1950). In common law fraud the plaintiff must prove that the defendant intentionally deceived him. See Prudential Insurance Company of America v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967) quoting from Sauter v. St. Michael\u2019s College, 70 N.M. 380, 374 P.2d 134 (1962). The present statute, however, does not necessarily place this onus of dishonesty on the defendant. The intent with which the defendant makes the statement is irrelevant under the terms of the statute. The statute requires only that the statement made be false and material, or that the omission be of a material fact necessary to make true the statement made. Since \u201c * * * the term \u2018fraud,\u2019 as used herein, is not the equivalent of \u2018actual fraud or conscious deceit\u2019 [the] * * * [q]uantum of proof requirements as to \u2018actual fraud\u2019 * * * are not controlling in this situation. * * * \u201d Yucca Mining & Petrol. Co. v. Howard C. Phillips Oil Co., 69 N.M. 281, 365 P.2d 925 (1961). The trial court correctly instructed the jury that the standard of proof was by a preponderance of the evidence.\nSECTION 48-18-31, SUPRA, APPLIES TO THE BROKERS IN THE PRESENT CASE ONLY IF THEY WERE THE AGENTS OF THE SELLER.\nSection 48-18-31, supra, imposes liability on, \u201c[t]he person making such sale or contract for sale, and every director, officer, salesman or agent of or for such seller who shall have participated or aided in any way in making such sale, * * *.\u201d Defendants argue that the confirmation slips indicate they acted as agent for the seller in only four of the nine relevant transactions. There is no other evidence, they contend, that they were agents of the seller in the other five transactions.\nWhether the evidence established that defendants were \u201cagents of the seller\u201d is irrelevant. The evidence does establish that defendant, Doherty and Company, through its agent, Keyes, acted as plaintiff\u2019s broker. The statute makes liable \u201c * * * [t]he person making such sale. * * * \u201d In common parlance a broker would describe himself as someone who makes sales. Defendants come within the liability provisions of \u00a7 48-18-31, supra. See Cady v. Murphy, 113 F.2d 988 (1st Cir. 1940), cert. denied, 311 U.S. 705, 61 S.Ct. 175, 85 L.Ed.458 (1940).\nTHE REMEDY UNDER \u00a7 48-18-31, SUPRA, IS NOT AVAILABLE FOR VIOLATIONS OF \u00a7 48-18-29(A), SUPRA.\nSection 48-18-31, supra, states in part :\n\u201c . . . Every sale or contract for sale made in violation of any of the provisions of this act, or of any order issued by the commissioner under any provision of this act, shall be voidable at the election of the purchaser. . . . \u201d (emphasis added).\nDefendants essentially contend: The words \u201cthis act\u201d refer only to the original, unamended sections of the act; amendment or repeal and reenactment of those original sections takes the section out of the purview of the words \u201cthis act.\u201d Since \u00a7 48-18-29(A), supra, was repealed and reenacted, violations of that statute are not afforded the remedy set out in \u00a7 48-18-31, supra. We disagree.\nThe introductory section to Article 18 of Chapter 48 of the New Mexico Statutes states: \u201cThis wet shall be known as \u2018The Securities Act of New Mexico.\u2019 \u2019-\u2019 (emphasis added). Section 48 \u2014 18\u2014.16, N.M.S.A. 1953 (Repl. Vol. 1966). Through several substantial revisions of Article 18, supra, the legislature did not revise or limit the applicability of this section. See Laws 1957, ch. 242; Laws 1959, ch. 171; Laws 1965, ch. 312. Section 48-18-29(A), supra, is part of the above-cited 1965 act. The title to the 1965 act reads: \u201cAn act relating to the sale of investment securities; * * * enacting new Sections 48-18-17 * * *, 48-18-29 * * Section 48\u2014 18-17, supra, is concerned with definitions \u201cused in the Securities Act of New Mexico.\u201d\nThe reference to investment securities in the title of the 1965 act and the reference to the Securities Act in \u00a7 48-18-17, supra, establishes that the 1965 act is a part of the New Mexico Securities Act. Since \u00a7 48-18-31, supra, is also a part of that act, the remedies of \u00a7 48-18-31, supra, apply to violations of \u00a7 48-18-29, supra. Footnote statements to the contrary by the compiler are not controlling. See Besser Company v. Bureau of Revenue, 74 N.M. 377, 394 P.2d 141 (1964).\nDEFENDANTS\u2019 EXHIBIT C WAS ERRONEOUSLY EXCLUDED.\nDefendants sought to introduce, as their exhibit C, a table purporting to show the stock transactions by plaintiff through Doherty and Company between 5/2/69 and 11/29/72, and various facts relating to those transactions. The trial court excluded the exhibit.\nDefendants\u2019 exhibit U was admitted without objection. It was an exact copy of exhibit C except for three columns showing the price at which plaintiff sold her stock, the date the highest bid was received after plaintiff purchased the stock and the bid price.\nThe sale price was relevant, defendant argues, because the fact that plaintiff made money on some transactions with Doherty and Company diminishes her claim. We disagree. Plaintiff is entitled to void any sale entered into in violation of \u00a7 48-18-29(A), supra, regardless of the profits made on other sales. The sale price was irrelevant.\nThe high bid prices and dates were also irrelevant. Section 48-18-31, supra, affords plaintiff the remedy of voiding the transaction notwithstanding plaintiff\u2019s later delay in disposing of the stock.\nThe trial court properly excluded exhibit C.\nFAILING TO DIRECT A VERDICT USING THE CLEAR AND CONVINCING PROOF STANDARD WAS ERROR..\nThe essential thrust of defendants\u2019 final argument is the same as their first. The restatement is no more persuasive.\nThe judgment is affirmed.\nIt is so ordered.\nWOOD, C. J., and HERNANDEZ, J., concur.", "type": "majority", "author": "HENDLEY, Judge." }, { "text": "ON MOTION FOR REHEARING\nSubsequent to the filing of the opinion in this cause plaintiff filed a motion for rehearing requesting attorney fees on appeal pursuant to \u00a7 48-18-31, N.M.S.A.1953 (Repl. Vol. 1966). Attached to the motion is a stipulation of the parties stipulating to an attorney fee of one thousand dollars plus tax and costs. The stipulation is approved.\nIt is so ordered.", "type": "rehearing", "author": null } ], "attorneys": [ "Richard B. Addis, Addis & Rawson, John W. Higgins, Albuquerque, for defendants-appellants.", "John Jasper and Stephen Durkovich, Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "527 P.2d 498\nShirley C. TREIDER, Plaintiff-Appellee, v. DOHERTY AND COMPANY, a New Mexico corporation, and Dale Keyes, Defendants-Appellants.\nNo. 1351.\nCourt of Appeals of New Mexico.\nSept. 18, 1974.\nRehearing Order, Sept. 27, 1974.\nCertiorari Denied Oct. 11, 1974.\nRichard B. Addis, Addis & Rawson, John W. Higgins, Albuquerque, for defendants-appellants.\nJohn Jasper and Stephen Durkovich, Albuquerque, for plaintiff-appellee." }, "file_name": "0735-01", "first_page_order": 765, "last_page_order": 769 }