Larceny, By false pretences. Pleading, Criminal, Indictment. Evidence, Stipulation as to what a person would testify to if called as a witness, Of similar transaction to show intent, Competency, Best and secondary, Assessors' records. Practice, Criminal, Judge's charge: illustration.
An indictment for obtaining money by false pretences, which conforms in its allegations to R.L.c. 218, §§ 38, 40, and, with a bill of particulars filed on motion of the defendants, accurately charges larceny by false pretences, will not be quashed because the bill of particulars also contains some immaterial or some insufficient allegations.
The admission in evidence, against the defendants' exception, at the trial of an indictment for larceny by false pretences of a statement by one of the defendants that he had been offered $42,000 for certain real estate, the giving of a mortgage upon which was a part of the transaction in question, was held to have been a material error, because the statement should have been excluded on the defendants' objection as being in the nature of mere "seller's talk," which was not to be treated as a false representation of a material fact; but the statement of the court in Mabardy v. McHugh, 202 Mass. 148, 149, that legal immunity for the falsehood of vendors should not be extended beyond the bounds already established, was quoted with approval.
In the same case it was held, that a statement by one of the defendants, that a certain person whom he pretended to represent was a wealthy manufacturer of ready made clothing, could have been found by the jury to have been a false statement of a material fact.
In the same case it was held, that the presiding judge properly refused to rule, at the request of one of the defendants, that in order to convict him the jury must find that he "met" the other two defendants "and conceived the scheme to defraud;" because if the defendant who asked for the ruling was a party to the scheme to defraud it was not necessary that there should have been an actual meeting between him and the other defendants.
In the same case it was held, that a stipulation as to the facts to which certain persons would testify if called as witnesses by the Commonwealth, which was signed by the district attorney and by counsel for each of the defendants, rightly was admitted in evidence, against the defendants' exception, because it had a tendency to prove the falsity of a material representation made by one of the defendants that a certain person was a man of wealth and a manufacturer of ready made clothing.
In the same case it was held, that the presiding judge in his charge properly used as an illustration a supposed representation made by the seller of a horse that the horse was sound and kind, which could be found to be an assertion of fact and not a mere expression of opinion, which was substantially the decision in Commonwealth v. Jackson, 132 Mass. 16.
In the same case it was held, that representations, that the indorsers of certain notes that formed part of the transaction in question were men of financial responsibility and owned real estate in a city named, could have been found under the circumstances shown to have been intended and understood as statements of fact.
Under an indictment for larceny by false pretences it is not required that the false statements constituting the pretences, should have been in writing; and in the present case it was held that R.L.c. 208, § 28, and R.L.c. 74, § 4, had no application.
In the same case evidence was admitted, against the defendants' exception, to show representations made by the defendants to a different person in a separate transaction at about the time of the transaction covered by the indictment. The evidence was offered to show the intent of the defendants by their conduct under similar circumstances, but it did not appear that the person in this other transaction was defrauded or that the sale of certain property by the defendants to him was not a perfectly fair transaction. Held, that the evidence was incompetent and that the exception to its admission must be sustained.
In the same case it was held, that the testimony of an assessor of a certain city, that, during two years in the course of which the false representations were alleged to have been made, neither one of the defendants, nor a person who with him indorsed certain notes, was assessed for any real or personal property in that city, was not admissible to show that these indorsers were not the owners of real estate in that city during the two years in question at the time when the alleged false representations were made, nor to show that the two indorsers were men without financial responsibility. And it was intimated, that the assessors' records for those years, which would have been the best evidence of their contents, would not have been competent evidence for the purpose for which the testimony of the assessor was admitted improperly.
CROSBY, J.
1. The indictment charges the defendants with the larceny of $700, the property of one Bullard. It is in conformity with the provisions of R.L.c. 218, §§ 38, 40. The motions to quash were properly denied. The indictment, with the statements of particulars filed, accurately charges larceny by false pretences. As was said by this court in Commonwealth v. Stevenson, 127 Mass. 446, at page 449: "But it is no ground for quashing an indictment for obtaining money by false pretences, that it contains some immaterial allegations, or that some of the pretences charged may not be properly charged, if upon its face there is an offence stated with proper precision and formality."
2. Evidence was admitted to show that the defendant Fuchs stated to Bullard that he (Fuchs) had been offered $42,000 for the Holyoke property. This evidence was admitted subject to the exception of the defendants. The question is whether this statement could have been found to constitute a false pretence. In civil actions the rule of the common law long has been recognized that mere statements of the vendor concerning either real or personal property, where there is no warranty as to its value or the price which he has given or has been offered for it, are to be treated as "seller's talk;" that the rule of caveat emptor applies, and therefore they are not actionable even if the statements are false and intended to deceive. This rule has been affirmed in many decisions of this court and long has been understood to be the law of the Commonwealth. We know of no case in which this court has come to a contrary conclusion. We think it plain that, if such statements are not the ground of civil liability, with stronger reason they cannot be held to constitute a criminal offence. Commonwealth v. Drew, 19 Pick. 179. Medbury v. Watson, 6 Met. 246, 249. Brown v. Castles, 11 Cush. 348, 350. Commonwealth v. Norton, 11 Allen, 266. Manning v. Albee, 11 Allen, 520, 522. Cooper v. Lovering, 106 Mass. 77, 79. Way v. Ryther, 165 Mass. 226. Gassett v. Glazier, 165 Mass. 473. Commonwealth v. Althause, 207 Mass. 32.
We do not mean to intimate that a seller would not be civilly and criminally liable if false statements as to the price paid or offers received for the property sold are accompanied by deliberate affirmations having a tendency more effectually to deceive the purchaser. See Way v. Ryther, 165 Mass. 226, 229.
While the exceptions to the admissibility of this evidence as a false representation of a material fact must be sustained, we are of opinion that the decisions in favor of vendors' representations should not be extended. As was said in Mabardy v. McHugh, 202 Mass. 148, 149: "This court in recent years, by pointed language and by conclusions reached, has indicated a plain disposition not to extend legal immunity for the falsehood of vendors in the course of negotiations for sales beyond the bounds already established."
3. The statement that Schusler was a wealthy manufacturer of ready made clothing is a representation of his financial standing and of the nature of his business. When a representation is made concerning a person's financial standing, to the effect that he is perfectly good and able to pay his debts, or is as good as a bank, or is a man of wealth, or similar representation is made, it is sometimes held to be a mere expression of opinion or judgment; on the other hand such statements, when they are intended to be made as statements of fact to be understood and relied on as such, may be found to be more than mere statements of opinion and, if false, actionable. In such cases, it is for the jury to say whether the representations were intended as expressions of opinion or statements of fact. Commonwealth v. Jackson, 132 Mass. 16. Morse v. Shaw, 124 Mass. 59. Homer v. Perkins, 124 Mass. 431. Commonwealth v. Stevenson, 127 Mass. 446. Gurney v. Tenney, 197 Mass. 457, 465, 466.
The latitude allowed a seller in disposing of property cannot be extended to false representations which may be found to be representations of fact and which tend to induce another to make a bargain different from the one he thought he was making. Whiting v. Price, 169 Mass. 576. The statement that Schusler was a manufacturer of ready made clothing was a statement of fact. We are of opinion that the statements taken together, that Schusler was wealthy and a manufacturer of ready made clothing, might have been found by the jury to amount to representations of facts and to be actionable if false. Accordingly the defendants' first and second requests could not have been given.
4. The third and tenth requests were covered substantially by the charge.
5. The ninth, eleventh and twelfth requests properly could not have been given, nor can the exception be sustained to the charge upon the ground that the false pretences relied upon were too remote to be a ground of criminal liability.
6. The defendant Fuchs made three separate requests for instructions. The thirteenth and fifteenth were given substantially. The fourteenth could not have been given in the form presented because, if Fuchs was a party to the scheme to defraud and participated in it, it would not be necessary that there should have been an actual meeting of Fuchs with the other defendants.
7. The stipulation admitted, subject to the exception of the defendants, was clearly admissible, as it had a tendency to prove the falsity of the representation that Schusler was a man of wealth and a manufacturer of ready made clothing.
8. The illustration given by the judge to the jury was well calculated to point out the difference between a statement of fact and the expression of an opinion. It was substantially in accord with the instructions given in Commonwealth v. Jackson, 132 Mass. 16, and which were held to be correct. The exception to this part of the charge is overruled.
9. The alleged representations to Bullard that Fuchs and Mehlman, the indorsers on the notes, were men of financial responsibility and owned real estate in Springfield, could have been found, under the circumstances, to have been intended and understood as statements of fact, upon the same ground that the representations concerning Schusler could have been found by the jury to have been representations of fact. The exception to the admission of evidence relating to these representations cannot be sustained. Commonwealth v. Stevenson, 127 Mass. 446. Morse v. Shaw, 124 Mass. 59. Homer v. Perkins, 124 Mass. 431.
The objection that the false pretences must have been in writing is not tenable. R.L.c. 208, § 28, has no application to cases of this kind, nor does R.L.c. 74, § 4, apply. Walker v. Russell, 186 Mass. 69. Belcher v. Costello, 122 Mass. 189.
10. There was evidence to show that one Cadieux, in December, 1912, sold a parcel of real estate to Schusler, and that in that sale the defendant Fuchs acted for Schusler and the defendants Quinn and Berman acted as real estate brokers. Evidence of representations made to Cadieux was offered to show that the conduct of the defendants at that time was similar to their conduct in this case; that the sale occurred at about the same time as the sale by Bullard; and that similar representations were made in both transactions.
This evidence was offered to show the intent of the defendants in their dealings with Bullard. "Conduct of one on another occasion reasonably near in time under similar circumstances if appearing to be parts of a comprehensive scheme by which different persons are to be defrauded, may have an important bearing upon his purpose in doing a particular act." Commonwealth v. Farmer, 218 Mass. 507, 512. Commonwealth v. Riches, 219 Mass. 440.
There is no evidence to show that Cadieux was defrauded, or that the sale of his property was not a perfectly fair transaction. The sale was fully consummated, and so far as appears in the record, there is nothing to indicate that Cadieux was induced to part with his property by reason of any fraud practiced upon him. For these reasons, the evidence relating to the sale by Cadieux was incompetent, and the exception to its admission must be sustained.
11. The witness Lawton, an assessor of the city of Springfield, testified that during the years 1912 and 1913 neither the defendant Fuchs nor Mehlman was assessed for any real or personal property in that city. We are of opinion that this evidence was not admissible to show that they were not the owners of real estate in Springfield in December, 1912, when the alleged false representations were made. It was merely hearsay. The evidence was equally incompetent to prove that Fuchs and Mehlman were men without financial responsibility. It is to be observed that the evidence offered was not the assessors' records for those years, and so it was not the best evidence of those facts, although we do not mean to intimate that the records would have been competent. In Commonwealth v. Heffron, 102 Mass. 148, this court said: "The book of assessments of taxes, made and kept by the assessors in the performance of their official duty . . . is doubtless competent evidence of the facts therein stated in all cases relating to the assessment or collection of the tax. . . . How far it is admissible for any other purpose, and in controversies between persons not claiming rights under it, is a question upon which the authorities are somewhat obscure." It was held by this court that the assessment of a man's poll and personal property in one town was no evidence of his domicil as against another town. Mead v. Boxborough, 11 Cush. 362. The valuation and assessment of real estate is no evidence of its value as between third persons. Flint v. Flint, 6 Allen, 34. Kenerson v. Henry, 101 Mass. 152. See Sts. 1913, c. 401; 1915, c. 281. In Commonwealth v. Heffron, supra, it was held that the record of the assessment was not admissible to prove that a parcel of land was situated in the town where the assessment was laid. See Downey v. Lancy, 178 Mass. 465, 467; Jordan v. Carberry, 185 Mass. 181.
In Enfield v. Woods, 212 Mass. 547, the defendant claimed title to the land in controversy on account of the adverse possession of her husband for twenty-three years. Before the trial her husband had died. The plaintiff contended that it entered into possession under a parol gift in 1814, and had held exclusive adverse possession ever since. This court held that as the husband, if alive, could have been called by the plaintiff as a witness and forced to testify that during all the time it was claimed he was in adverse possession of the land he never paid a tax upon it, it would be evidence that he was not in possession of it as owner during that time; and that such testimony would be circumstantial evidence against the defendant's claim of adverse possession under a claim of ownership. The valuation lists showed that the locus was not taxed to any one during these twenty-three years, but was noted on the books of the assessors "as town property and exempt under the law." This court held that the valuation lists were admissible, because if land is not entered upon them it is not taxed, and if not taxed, no tax would have been paid thereon by the defendant's husband; and evidence that it was not taxed to him during this whole period would be evidence that he was not in exclusive adverse possession as owner during that time.
Enfield v. Woods cannot be considered as authority for the admission of the assessors' records in this case. The valuation lists in that case were not admitted as evidence of title to the locus, but were held competent only as circumstantial evidence tending to show the character of the possession and occupation of the land by the defendant's husband. If he paid no taxes upon the land during the entire period, it was evidence that such possession was not adverse to the plaintiff town. See Whitman v. Shaw, 166 Mass. 451, 461.
A large number of exceptions were saved, but as there must be a new trial, we do not consider it necessary to pass upon all of them, as the questions presented may not arise again. Let the entry be
Exceptions sustained; new trial granted.