Harlow v. Bartlett, 170 Mass. 584

Harlow v. Bartlett

170 Mass. 584 | Mass. | 1898

Morton, J.

There are two questions in this case : first, whether the decree in the suit in equity brought by the plaintiff against the defendants and one Llewellyn H. Bartlett is a bar to this action ; secondly, whether there is any evidence warranting a verdict for the plaintiff.

The declaration contains two counts, one in contract, and one in tort,—both for the same cause of action. The court ruled that the decree was a bar to the count in tort, but not to the *591count in contract, and to so much of this ruling as held that the decree was not a bar to the count in contract, as well as to the refusal to rule that on all the evidence the plaintiff could not recover, the defendants excepted.

The bill of exceptions also presents a question relating to the admissibility of evidence, but the defendants have not argued it, and we treat it as waived.

The fact that the form of action was different in the former case from that in this, and that one of the defendants in that case is not a defendant in this, will not prevent the decree from operating as a bar, if the cause of action was the same, and the case was tried on the merits and the same question which is presented here was tried and determined there, or if the question now presented was in fact tried and determined in that proceeding, though the cause of action might not have been the same. French v. Neal, 24 Pick. 55, 61. Bigelow v. Winsor, 1 Gray, 299, 302. Foye v. Patch, 132 Mass. 105, 110, 111.

There was contradictory testimony on the question whether the same' issue which now is presented was in fact tried and determined in the former suit. But that question does not appear to have been submitted to the jury, nor does there appear to have been any request by the defendants that it should be. Unless, therefore, it appears from the pleadings that the cause of action in that case was the same as that set forth in the count on which this case was submitted to the jury, the request to rule that the decree operated as a bar was rightly refused.

Briefly stated, the cause of action set out in the bill in equity was that the present defendants, purporting to act as an agent of the plaintiff in regard to the sale of certain property, and in regard to certain transactions relating thereto described in said bill, conspired together by means of false and fraudulent representations and dealings in regard to said .transactions and property to defraud her out of said property and the. proceeds thereof, of which it was alleged in substance that they and certain persons who were their instruments had possession, and which they held in equity and good conscience, as trustees for the plaintiff. The prayer of the bill was that they should be compelled to transfer and assign said property to the plaintiff.

The cause of action set out in the count in contract in the *592present case is, that the plaintiff employed the defendants to sell certain property, being the same referred to in the bill in equity; that they negotiated the sale which she, relying upon them, carried out, receiving as security for payment of the sum for which the property was sold a mortgage on certain land in Revere; that the purchaser was irresponsible and the security worthless or nearly so ; and that the defendants failed to exercise proper care and diligence in protecting the plaintiff’s interests as her agents.

It is plain, we think, from this statement that the causes of action in the two cases were different. “ It is true,” as was said in Norton v. Huxley, 13 Gray, 285, 290, 291, “ that both originated in the same series of transactions, and in the conversations and communications which took-place between the parties concerning them.” But, as is also said in that case, “ Proof which would fully support the one would have no tendency to maintain the other.” The fact that it may have been found in the suit in equity that the defendants were not guilty of fraud and conspiracy would have no tendency to show that they might not be guilty of negligence in looking after the plaintiff’s interests as her agents, even though facts cognizable in this case might have been incidentally referred to and considered in that. Norton v. Huxley, 13 Gray, 285. Gaylord v. Pelland, 169 Mass. 356. Stark v. Starr, 94 U. S. 477, 485, 486. The fact that both counts-are described as for the same cause of action is immaterial. The question is whether the cause of action set out in the count on which the case went to the jury is the same as that set out in the bill in equity. For reasons already given, we are of opinion that it was not.

We think that there was testimony which warranted the jury in finding that there was negligence on the part of the defendants. There was testimony tending to show that the plaintiff relied on the defendants in regard to the sale and the sufficiency of the security, and that the defendants accepted the responsibility. Under those circumstances they were bound to exercise reasonable care in respect to the sale and the security. Barnard v. Coffin, 138 Mass. 37, 44. There was testimony tending, amongst other things, to show that the value of the property at Revere was only §2,300; that there was a first mortgage *593on it of $1,800, and that the plaintiff’s security consisted of a second mortgage on it of $1,200; that the defendant Bartlett told her that she was perfectly secure; that no security was taken by the defendants on the property which she conveyed, and which was sold shortly after by the purchaser for $1,000 or $1,100; and that Patten, the purchaser, became insolvent in about three months after the sale and purchase. We think that it was competent for the jury to find from this and other evidence that the defendants had failed to use that reasonable care which a due regard for the plaintiff’s interests required, and that she had sustained damage thereby.

Exceptions overruled.