Brief for appellees motion picture patents company and Edison manufacturing company (1913)

31 January 5, 1909, all of which testimony has been set forth and commented upon above, contradict appellant's version of these interviews. It is incredible that Mr. Dyer would have taken their announcement in the matter of course fashion testified to by Lodge and Fordham, in view of the persistent efforts he had been making to prevent stock being sold to exchanges or parties interested in exchanges, in view of the stringent action he had taken on learning of Lodge's circulars in early September, in view of his language to Lodge at the meeting of December IS, and the consistent action he took after that meeting, and in view of the terms incorporated in the tentative agreement evidenced by the letter of January 6, 1909. We have in this point adopted appellant's own theory of the ratio decidendi of the learned Court below, i. e., that the misrepresentations were solely the verbal promises and statements made by Lodge to Dyer. As we read the opinion, however, it seems clear that the fraud was found in both the verbal representations and in the written agreement of September 18, for the word " undertakings'' used in the opinion points to the undertakings and conditions in that document. We have dealt with the breach of these written undertakings in our Point V below, but desire also to refer this learned Court to the brief for intervenors-appellees Melies, where Judge Blatchford's language is taken to refer solely to the written undertakings, and the effect of their breach is ably presented at greater length.