Leslie v. Jaquith

| Mass. | Feb 26, 1909

Hammond, J.

The finding for the plaintiff could not have been made by the judge before whom without a jury the case was tried, unless he found, among other things, that in the act of converting the goods Jaquith, the husband of the defendant, acted as her agent, and that she knew this and approved of the act, and that so knowing she concealed from the plaintiff her liability as an undisclosed principal for that act. Upon these three elements of the plaintiff’s case the defendant strenuously contends that as matter of law the evidence does not warrant the findings.

But we are of opinion that the evidence, though conflicting, does clearly support the finding that the husband in these matters was acting as the agent of the defendant, and that she knew this at the time and approved of the act.

Whether within the meaning of R L. c. 202, § 11, she fraudulently concealed her liability for the act of conversion is a question of greater difficulty. She does not seem personally to have said anything to the plaintiff, or personally to have done any act known to him as hers until considerably more than six years after the cause of action accrued. Nor did she sustain any fiduciary relation to the plaintiff making it her duty to inform him as to her liability, as was the case in Atlantic National Bank v. Harris, 118 Mass. 147" court="Mass." date_filed="1875-06-28" href="https://app.midpage.ai/document/atlantic-national-bank-v-harris-6418156?utm_source=webapp" opinion_id="6418156">118 Mass. 147. And it is argued that mere silence is not fraudulent concealment. It becomes unnecessary, however, to consider whether mere silence, where there is no duty to speak, is sufficient to constitute fraudulent concealment. Upon this point see, as to the law in New Hampshire, Quimby v. Blackey, 63 N. H. 77, and as to the law in this Commonwealth, Nudd v. Hamblin, 8 Allen, 130, Walker v. Soule, 138 Mass. 570" court="Mass." date_filed="1885-02-27" href="https://app.midpage.ai/document/walker-v-soule-6421577?utm_source=webapp" opinion_id="6421577">138 Mass. 570, and Cocke v. Greene, 180 Mass. 525" court="Mass." date_filed="1902-02-28" href="https://app.midpage.ai/document/cocke-v-greene-6427736?utm_source=webapp" opinion_id="6427736">180 Mass. 525.

In the present case there was much more than silence on the part of the defendant. Her husband acted as her agent not only in the act of conversion, but also (as the judge may have found) in maintaining that act to be lawful; and therefore she must be held accountable for whatever he said or did in maintaining the claim. When the plaintiff sought to recover the value of the articles converted he was met by the assertion that the mortgage from Goodrich under which the goods were claimed was a mortgage given to secure a debt due to the husband, and the goods were claimed as the property of the husband. And all the way through the litigation this seems to have been the justification relied upon as against the plaintiff. In making this claim the husband was acting as the defendant’s agent, and she must be held to have known it. His words and acts in this connection were her words and acts. Haskell v. Starbird, 152 Mass. 117" court="Mass." date_filed="1890-06-30" href="https://app.midpage.ai/document/haskell-v-starbird-6423548?utm_source=webapp" opinion_id="6423548">152 Mass. 117. The act of conversion and the attempted justification were all in her behalf. She said through her husband that they were all done in his behalf. These statements were not true and they were misleading. And, considered in connection with the other circumstances of the case, they fully justify the finding that she fraudulently concealed the fact that there was a cause of action against her.

Exceptions overruled.