182 Mass. 1 | Mass. | 1902
This is an action for deceit arising out of the conveyance by the plaintiff to the defendant of an equity in certain real estate belonging to the plaintiff in exchange for certain stock belonging to the defendant. The stock transferred by the defendant to the plaintiff was stock in the Van Choate Electric Light and Car Company, a defunct concern whose stock was worthless. The alleged deceit was that the stock was represented as stock of the Van Choate Electric Company whose works were located at Foxborough. This stock had a market value of $10 a share. The number of shares to be exchanged was one thousand.
There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the presiding judge to give various rulings that were asked for, to the instructions that were given, and to the exclusion of two questions that were put to the plaintiff on cross-examination. •
The questions that were excluded were whether the plaintiff had offered, before the action was brought to return the stock and take a deed back, and whether he was willing to take back the land for the stock. The action sounds in damages, and the question whether the plaintiff had offered or was willing to rescind was entirely immaterial. His willingness or unwillingness to rescind would have no tendency to show that a deceit had or had not been practised as alleged.
The defendant contends that the evidence did not warrant a verdict for the plaintiff and that the jury should have been so instructed. Fraud is of the essence of the action, and the plaintiff was bound to show that the defendant, either personally or through an agent employed by him, falsely and fraudulently represented the stock as stock in the Van Choate Electric Company whose works were at Foxborough, and that relying on such representations, he was induced to make the exchange which was made and suffered damage in so doing.
The exchange was effected through two brokers, one Haley acting for the plaintiff, and one Leavitt for the defendant, and the misrepresentations relied on are alleged to have been made by
Besides the request which we have considered various other requests were presented by the defendant. With the exception of two or three they were all refused. We deem it necessary to speak only of those relating to the exercise of reasonable diligence on the part of the plaintiff and his agent. And as to those it is enough to say that the effect of the representations relied on was to send the plaintiff and his agent to the office of the very company whose stock they supposed they were getting, and there was no reason why they should take the company to be other than it was represented to be. We do not think that it can be said as matter of law that it was evidence of negligence on Haley’s part that having the certificate in his possession for a few hours he did not examine it and discover the alleged misrepresentation. It may be doubted whether negligence as a defence in this class of cases is not in danger of being pressed too far. See Whiting v. Price, 172 Mass. 240.
We think that the instructions that were given were well ádapted to the case and were all that were required.
Exceptions overruled.