Kiely v. Corbett, 205 Mass. 158

Kiely v. Corbett

205 Mass. 158 | Mass. | 1910

Sheldon, J.

The case was submitted to the jury upon the issue whether the second agreement was obtained from the plaintiff by fraud on the part of the defendant; and the only question presented to us is whether there was evidence to justify a finding *161against the defendant on that issue. The contention made by the plaintiff in argument was that the action of the defendant under the circumstances was a representation that this second agreement represented or contained the terms which formerly had been agreed upon, that this representation was false and fraudulent, and that it was this representation that induced the plaintiff to sign the second agreement. But the plaintiff’s testimony does not support this contention. He first testified that the defendant did not read the new agreement aloud to him, but asked him to sign it; then that the defendant did read it “kind of loud,” but that he (the plaintiff) “ couldn’t understand it ”; that the defendant told him nothing about the new agreement but simply asked him to sign it; that he had no idea why he signed the new agreement or gave up the first one. On redirect examination, he said that Corbett read the new agreement to the defendant’s bookkeeper, that he (the plaintiff) could understand him reading it, but “ there was no use of my understanding it when I didn’t know anything about it.” In answer to a question whether the defendant read the agreement so that he (the plaintiff) knew the contents of it, he said: “ Of course if I had any understanding about it, or if I was in any way smart or intelligent, I suppose I would have understood it; but I didn’t.” On re-cross-examination he testified that he could not say whether the defendant read the new agreement to him (the plaintiff) or to the defendant’s bookkeeper, and could not say whether the bookkeeper read it to him. We find nothing in the testimony of the other witnesses or in the plaintiff’s testimony when called in rebuttal which adds anything to these statements. Manifestly this testimony would not justify a finding that such a fraud as is claimed had been practised upon him by the defendant. There was no representation and nothing. to indicate a representation by the defendant that the second agreement represented or contained the same terms which formerly had been agreed upon and had been embodied in the first agreement. Accordingly, upon the contention made at the trial the defendant’s first request should have been given; and the defendant’s exceptions must be sustained.

The defendant asks us now, under the provisions of St. 1909, c. 286, to direct the entry in the Superior Court of judgment in *162his favor. Under the circumstances we are of opinion that this ought to be done. Most of the false representations averred in the first count of the declaration, the only one which dealt with the subject, were not relied on at the trial, and there was no evidence of the only fraud which was relied on. And the plaintiff could not recover upon any count of his declaration, upon the state of facts which appeared at the trial, without proof of actual fraud on the part of the defendant. The entry must be

Exceptions sustained; judgment to be entered for the defendant.