Deceit. Conspiracy. Pleading, Civil, Declaration. Sale. Practice, Civil, Exceptions, Conduct of trial.
The declaration in an action of tort against three persons alleged that each of the three defendants separately made false and fraudulent representations of facts to the plaintiff, knowing them to be false, that he, being ignorant of their falsity, relied thereon and consequently was damaged, contained in its last paragraph the allegation that the representations "were made by the defendants upon an understanding between themselves as a conspiracy for the sole purpose of deceiving the plaintiff," and concluded with the statement, "For which the plaintiff brings this action against the defendants as conspirators to recover his money back." Held, that the allegations of conspiracy were not the gist of the action, but that the right of the plaintiff to recover rested upon the damage wrongfully inflicted upon him by the tortious acts of the defendants.
In an action of tort for deceit against three persons, there was evidence tending to show that each defendant made false representations of facts to the plaintiff, knowing them to be false and intending that the plaintiff should act upon them, that the plaintiff, not knowing the representations to be false, did so act and consequently was damaged. There was a verdict against all three defendants, one of whom alone excepted to a refusal by the presiding judge to direct a verdict in his favor because of a lack of evidence of a conspiracy among the defendants. Held, that, the representations of the excepting defendant being actionable, the plaintiff was entitled to recover against him quite apart from any joint plan to defraud on the part of all the defendants.
Representations by one who is a subscriber to the stock of a corporation organized for the purpose of manufacturing and selling a patented invention, that he himself had invested $2,000 in the stock, that the investment was paying him twelve per cent, that the corporation already was on a paying basis and owned real estate, and that its treasurer was a man of wealth, ability and character, if they are false, are known to the person making them to be false, and are made to a woman who did not know them to be false and for the purpose of inducing her to buy stock in the same corporation, are actionable if the woman, relying upon them, buys the stock and it proves to be of no value, since they are false representations of facts and not mere seller's or promoter's talk or representations of something to be done in the future.
An action of tort for deceit against three defendants was tried with an action against one of the three of the same nature, brought by the same plaintiff and arising out of the same state of facts, and there was evidence introduced which it was proper for the jury to consider against all three defendants if there was a conspiracy or combination among them to defraud the plaintiff, but which it was improper for them to consider if there was no conspiracy or combination. The presiding judge refused to rule at the request of one of the defendants that there was no evidence of such conspiracy or combination which included him and left the matter to the jury to determine under appropriate instructions. There was a verdict for the plaintiff against all the defendants. The defendant who made the request excepted to the refusal of the presiding judge to grant it. There was evidence tending to show that the plaintiff, a dressmaker, upon going to one of the other defendants on other business, on that defendant's own motion was advised to invest in the stock of a certain corporation, and to see the treasurer of the corporation, (another of the defendants but not the one excepting) and that, in giving the advice, the first defendant made various representations of fact with regard to the treasurer and the company and accompanied the plaintiff to him; that, at a later interview, the same defendant suggested that the plaintiff go to the excepting defendant, an oculist, for treatment for her son, stating that such defendant had invested in the stock of the corporation; that the plaintiff went to see the excepting defendant as suggested and he, on finding out from whom she came, while treating her son, strongly urged the plaintiff to invest in the stock of the corporation; that the plaintiff had several interviews, first with one defendant and then with another, that all of the defendants were subscribers for the stock of the corporation which was in need of working capital, all were well acquainted with one another, and that all of them made practically the same representations to her, which were false. Held, that there was evidence warranting a finding that there was a conspiracy or combination among the defendants to defraud the plaintiff.
An exception to a refusal by the judge presiding at a trial to give a ruling in the language requested will not be sustained where the instructions given on the subject to which the request related were full, correct and appropriate.
BRALEY, J.
The allegations of conspiracy in the closing paragraph of the declaration are not the gist of the action, as the right to recover rests upon the damage wrongfully inflicted upon the plaintiff by the tortious acts of the defendants. Parker v. Huntington, 2 Gray, 124. While it does not appear that the representations of one defendant more than those of another influenced the plaintiff, yet the case is before us on the exceptions of Tenney alone, and if the representations made by him were actionable, the plaintiff would be entitled to recover quite apart from any joint plan to defraud. In his interviews with her, after being informed that she had money to invest, he stated in substance that he had invested in the preferred stock of the company, whose treasurer was a man of character, ability and wealth, and that the company was then on a paying basis earning twelve per cent, and owned land upon which a large factory for the manufacture of lamps was to be built. The defendant's argument asks us to treat these representations as mere expressions of matters of opinion, or as partly promissory. But these positive statements were material assertions of the value of the property, upon which the jury could say that for his personal benefit he intentionally persuaded and induced the plaintiff to buy its stock by falsely representing in various ways that the company was financially sound and well managed, and that it owned real estate soon to be used for manufacturing purposes. Collins v. Denison, 12 Met. 549. Cole v. Cassidy, 138 Mass. 437. Pike v. Fay, 101 Mass. 134, 137. Lewis v. Jewell, 151 Mass. 345. Andrews v. Jackson, 168 Mass. 266. Weeks v. Currier, 172 Mass. 53. Arnold v. Teel, 182 Mass. 1. Lee v. Tarplin, 183 Mass. 52. When employed as a means to this end, they cannot be classed as mere over statements of value, which under one form or another have been designated as mere seller's or promoter's talk, nor of something to be done in the future; and therefore the defendant's first request for rulings was rightly denied. Whiting v. Price, 172 Mass. 240, 241. Lee v. Tarplin, ubi supra, p. 57.
The third request asked for a ruling that the evidence failed to establish any combination to defraud the plaintiff. It is manifest from their evidence that the defendants as stockholders had a common interest and purpose in the promotion of the success of a company in immediate need of working capital, which could be obtained only from money received from the sale of its preferred and common stock. If, after this motive for their conduct is disclosed, the course of affairs is followed from the time the plaintiff first met the defendant Conant, by whom she was sent to Tenney, and who advised her to see Robinson, and they all three respectively suggested and urged the purchase of the stock by substantially similar statements, a legitimate inference of a concert of action between them to persuade the plaintiff to make the investment would be well warranted. It also would follow that, if they acted jointly, each would be liable for any actionable representations made by the others by which the wrong was finally accomplished. Spaulding v. Knight, 116 Mass. 148. Commonwealth v. Scott, 123 Mass. 222, 235. Brinkley v. Platt, 40 Md. 529. Both issues were matters of fact for the jury to decide under suitable instructions, and the exceptions to the refusal to give the third and fourth requests are not well taken.
The second and sixth requests asked for rulings that certain of the representations of each and all of the defendants were not actionable. But the refusal to instruct in the language requested affords no ground of exception, as the presiding judge fully, correctly and with appropriate illustrations directed the attention of the jury to the distinction between representations which they might find to be material, and those which were merely expressions of opinion. Graham v. Middleby, 185 Mass. 349. Andrews v. Jackson, ubi supra. Exceptions overruled.