Brown v. C. A. Pierce & Co.

| Mass. | Jan 2, 1918

Pierce, J.

This is an action of contract or tort. The declaration is in three counts: the first count alleges that the defendant through its agent, one Barry, made certain false representations which were intended to induce and did in fact lead the plaintiff to expend money in the purchase of subscriptions to a paper published by the defendant under the terms of a “voting contest;” the second count alleges that the defendant through its officers and agents cpnspired with sundry persons to cheat and defraud the plaintiff by means of the false representations set out in the first count and incorporated in the second count by reference thereto; the third count is an action for money had and received to the plaintiff’s use. Counts one and two are alleged to be for the same cause of action, and count three “for a part of the same cause of action.”.

At the trial there was no evidence to warrant the allegations of the second count to the effect that the defendant by its officers and agents wrongfully conspired with sundry persons to cheat and defraud the plaintiff by means of the same representations set out in the first count. The second count therefore may be disregarded, and we proceed to a consideration of the testimony introduced in proof of the allegations contained in the first and third counts.

The evidence was sufficient to establish the agency of both Monger and Barry, should the jury believe that the “Memorandum of Agreement” was not intended to express the real agreement between the parties, but was to be a cloak or shield to protect the defendant from actions that might arise from the wrongful conduct of its agents and servants. The jury expressly found that Barry was the agent of the defendant, and it could have been found upon the testimony that Barry, to induce the plaintiff to put his nloney into the “voting contest,” stated to the plaintiff and to the wife of the plaintiff in the presence of the plaintiff, “that the contestants was losing interest in it and it was going to be a failure;” that “they had bought all these prizes and could n’t afford to give them away; . . . that somebody had got to put some money into it so they could get out of it; . . . that anybody would be a fool if they had a chance to get an automobile for $300 and wouldn’t accept the chance;” that “if I [the plaintiff]] would give him a check for $300 that night that I would win the automobile and also the grafonola that was put up as a special prize.” The jury could further find that the plaintiff put $300 and after-wards $240 into the contest in reliance upon the above statements of Barry, and particularly and specifically upon the statement that if he, the plaintiff, would give him, Barry, a check that night, he, the plaintiff, would win the automobile and the grafojnola.

There was evidence to warrant a finding that one Monger, who had the management of the contest and who could have been found to have been the agent of the defendant, and one C. A. Pierce, the treasurer and manager of the defendant corporation, each had knowledge of the statements of Barry to the plaintiff before the $300 and the $240 were paid. There was no evidence of the untruth or falsity of the statement “that the contestants was losing interest in it and it was going to be a failure.” The remaining statements were not of existing facts. They were at most words of intention or prophecy.

In the law of torts, the wrong of deceit consists in the false statement by words or conduct of present or past material facts, and does not consist of mere promises or conjectures as to future acts or events. Knowlton v. Keenan, 146 Mass. 86" court="Mass." date_filed="1888-01-10" href="https://app.midpage.ai/document/knowlton-v-keenan-6422675?utm_source=webapp" opinion_id="6422675">146 Mass. 86. Dawe v. Morris, 149 Mass. 188" court="Mass." date_filed="1889-05-10" href="https://app.midpage.ai/document/dawe-v-morris-6423126?utm_source=webapp" opinion_id="6423126">149 Mass. 188. It is plain the plaintiff was not entitled to recover on the counts in tort.

Nor can there be any recovery on the count in contract, which proceeds on the footing of a rescission of the contract which the plaintiff alleges he was induced to make by the misrepresentations set out in the count in tort. McCusker v. Geiger, 195 Mass. 46" court="Mass." date_filed="1907-03-07" href="https://app.midpage.ai/document/mccusker-v-geiger-6429817?utm_source=webapp" opinion_id="6429817">195 Mass. 46.

It follows that the motion to direct a verdict for the defendant should have been granted, and it is unnecessary to determine whether the demurrer was overruled rightly.

The exceptions must be sustained and judgment entered for the defendant. St. 1909, c. 236.

So ordered.