| Me. | Jul 1, 1873
In our view of the facts of this case, the instruction complained of was erroneous. There was evidence tending to show that the plaintiff made certain loans to one Ezekiel Oliver; that he was induced to do so by means of certain false and fradulent oral representations, made by the defendant, concerning the financial credit and ability of Oliver; that the money was paid by the plaintiff into the hands of the defendant, as the bailee or agent of Oliver, and immediately passed by him to his principal.
¥e think that these facts would bring the case within the Statute of Frauds; and that, for that reason, the instruction cannot be sustained. Besure, in this case the statute was not specially pleaded by the defendant, nor was it required to be, where the declaration contained only the general count of money had and received, as the nature of the claim alleged was not thereby disclosed to him. Boston Duck Company v. Dewey, 6 Gray, 446. Nor does it appear that the evidence alluded to was admitted against the objection of the defendant, but it was so interwoven with the other testimony, which was admissible, that any attempt at separation in the story of witnesses would have been impracticable. We are of the opinion that the defendant was guilty of no laches that should debar him of this defence.
The declaration does not, of itself, set out the particular facts which show the wrong complained of to be within the Statute of Frauds. Nor is that necessary in order to make a defence under the statute available. The language of the act is that “no” action shall be maintained “by reason of” any representation. It does not require that the plaintiff must, in terms, declare upon the representation. The true test whether the cause of action, in whatever form alleged, comes within the statute is, whether the action .can be sustained without proof of the representation. If such .proof is essential to the action, the statute applies. It is immaterial that the defendant may have had some design of obtaining an advantage to himself in consequence of the loan to Oliver, or that such a thing resulted from the transactions, provided the primary object of the representations was to induce the procurement of a credit to Oliver, and the loans were obtained thereby. In such case the protection extended by the statute is absolute and
This view of the case does not necessarily deprive the plaintiff of all remedy. The rulings and instructions now complained of would undoubtedly be right, should it appear at another trial that the credit for the loans was given to the defendant, instead of to Oliver. The statute was evidently intended to bar only actions for verbal representations, made with the intent that the person concerning whom they are made may obtain credit money or goods thereupon, Norton v. Huxley, 13 Gray, 287. Or should the plaintiff be able to show that he parted with his money in consequence of representations made by Oliver himself, of which the defendant had knowledge, concurring and conspiring with Oliver, in such case the defendant might be liable in tort, or for money had and received, the plaintiff waiving the tort. See Knapp v. Hobbs, 50 N. H., 476, a case in some of its features resembling the case at bar. Richardson v. Kimball, 28 Maine, 476. Or should it appear that the representations relied upon, if made by the defendant, related to the nature, character and title of the mill property of Oliver, rather than to his general character and credit pecuniarily, then an interesting question would arise, upon which judicial opinion is somewhat divided, whether or not the action can be maintained on that account. All these hypotheses of fact have some semblance of foundation, at least, in the evidence reported. See Browne on Statute of Frauds, §§ 182, 183 ; Medbury v. Watson, 6 Metc., 246 ; Swann v. Phillips, 8 Ad. & Ell., 457 ; Lyde v. Barnard, Tyrw. & Gr., (Exch.) 250.
Exceptions sustained.