197 Mass. 457 | Mass. | 1908
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 ease 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, aiid that it owned real estate soon to be used for manufacturing
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
Exceptions overruled.