| Mass. | Sep 3, 1875
The material allegations of the first count now relied on are that the defendant orally represented to the plaintiff that a corporation, of which he was treasurer, and whose overdue note the plaintiff then held, owed no other debts and had no attachments upon its property ; that this representation was fraudulently and falsely made for the purpose of inducing the plaintiff not to commence suit upon his note until the corporate property could be placed beyond the reach of attachment by the plaintiff: that all the property of the company was afterwards attached and sold on execution upon another debt; and that the plaintiff, induced by the representations not to enforce his claim by suit, lost his debt against the company.
The allegations of the third count do not differ in substance from those of the first, but state with more particularity that the plaintiff, by said representations, “ was induced to forbear securing payment of his note by an attachment of said property, as he might and would have done but for said false representations.” Both counts assume that the other debt on which the corporate property was taken was a valid debt of the company. The plaintiff does not rely on these counts to charge the defendant by reason of any representations concerning the character, conduct, credit, ability, trade or dealings of the corporation; for such representations must be in writing, signed by the party to be charged den. Sts. a. 105, § 4.
The second count alleges the plaintiff’s ownership of the note described in the first count, and that the defendant, conspiring with one Baldwin to defraud the plaintiff and prevent him from securing his debt by attachment and levy, issued a note of the corporation, signed by him as treasurer and payable to his own order, upon which he caused an attachment of all the property of
It would be a forced construction of these allegations to assume that the note of the corporation which was issued by the defendant was not given for a valid debt of the corporation, or that the fraud charged consisted in anything more than a conspiracy to obtain a prior attachment of the property. It is not alleged that the note was given without consideration, or that the judgment by which the property must have been transferred was obtained by fraud. It is not alleged that the company was insolvent, or that the plaintiff ever brought suit or attempted to collect his debt, or that he ever intended or attempted to make any attachment of the corporate property, or was induced by the defendant to refrain from making such attachment. The averment of conspiracy in this count does not change the nature of the action or add anything to its legal force and effect. The gist of the action is the tort committed and the damage resulting from it, and it is the same whether committed by the defendant alone or jointly with another. Wellington v. Small, above cited. Randall v. Hazelton, above cited. This count contains fewer allegations than the others, and the objections stated to them are equally fatal to this. The declaration fails to state an actionable wrong. Judgment for the defendant.