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DAVID WARNER v. ROBERT JORDAN AND PHYLLIS JORDAN (01/28/77)

SUPREME COURT OF PENNSYLVANIA


decided: January 28, 1977.

DAVID WARNER
v.
ROBERT JORDAN AND PHYLLIS JORDAN, APPELLANTS

Appeal No. 586 January Term, 1974, from the Order of the Superior Court at No. 1611, October Term, 1973, dated November 8, 1973, Affirming, Per Curiam the Judgment of the Court of Common Pleas of Montgomery County, dated June 28, 1973, at No. 70-10225; Robert W. Tredinnick, Judge.

COUNSEL

Thomas M. Garrity, Michael J. O'Donoghue, Wisler, Pearlstine, Talone, Craig & Garrity, Norristown, for appellants.

Edward Fackenthal, Norristown, for appellee.

Jones, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., took no part in the consideration or decision of this case. Roberts, J., filed a dissenting opinion.

Author: Per Curiam

[ 470 Pa. Page 152]

OPINION

Order affirmed. Each party to bear own costs.

ING OPINION

ROBERTS, J.

Appellee, David Warner, instituted this action pursuant to Section 12 of the Securities Act of 1933.*fn1 Appellee

[ 470 Pa. Page 153]

    claimed that a partially performed contract for the sale of securities between him and appellants, Robert Jordan and his wife Phyllis, was in violation of the Securities Act of 1933 because the securities were not registered. The Court of Common Pleas ordered rescission of the contract, and awarded damages to appellee on the basis of losses sustained when he resold securities purchased pursuant to the contract. The Superior Court affirmed, per curiam.

The record supports the trial court's conclusion that the contract was in violation of the Securities Act. Appellant did not sustain his burden of proving that this was a private sale, exempt from the Securities Act.*fn2 I conclude, however, that appellee should be estopped from claiming any damages.

Appellee, a close friend of appellant, helped set up the arrangement by which appellant obtained his stock in exchange for his rights to an invention. Appellee also helped promote the device. Appellee was familiar with appellant's plan to sell securities over the counter; the sales were made through a brokerage firm recommended by appellee.


*fn1 15 U.S.C.A. § 77 l (1971).

*fn2 See 15 U.S.C.A. § 77d (1971).


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