| Mass. | Apr 1, 1839
delivered the opinion of the Court. Most of the principles and rules applicable to the case of procuring money on goods by false and fraudulent pretences, and of avoiding and vacating contracts obtained by false representations, are applicable to this case. The gist of the action was the conspiracy of the three defendants, after having agreed upon a sale of the brig at a large price, to induce the plaintiff’s agent, by a concealment of the fact that the vessel could be sold for such price, and by false and fraudulent representations, to sell the plaintiff’s quarter part of the vessel, at a price much below that which they had so agreed to sell for. The Court are of opinion, that the direction of the judge who tried the cause, was correct in stating to the jury, that the mere non-disclosure of the fact, within their own knowledge, that they could sell and had agreed to sell the brig for a higher price, would not be sufficient to support the action, and that they were under no legal obligation to disclose that fact, and that withholding it was not such a fraudulent concealment of the truth, as would of itself maintain the action. The Court are of opinion, that the tenants in common of a vessel, who are not engaged jointly in the employment of purchasing or building ships for sale, do not stand in such a relation of mutual trust and confidence towards each other, in respect of the sale of such vessel, that each is bound, in his dealings with the other, to communicate all the information of facts within his knowledge, which may affect the price or value. A different rule may prevail, in respect to any contract for the use or employment of the common property, in which relation perhaps they may be deemed to place confidence mutually in each other. But as in common cases of tenants in common of a vessel, they are independent of each other in all matters of purchase and sale, and may deal with each other in the same manner as owners of separate property. Each may act upon the knowledge which he has, without com
The judge further instructed the jury, that in order to maintain this action, they must be satisfied that the defendants had made the false representation and that the sale was produced by means of it; that it was not necessary that it should be the sole and only motive inducing the sale, but it must have been a predominant one. In this particular, the Court are of opinion, that the direction, as it may have been and probably was understood by the jury, was not strictly correct; though it may have been so qualified and illustrated as to prevent the jury from being misled by it.
The term “ predominant,” in its natural and ordinary signl fication, is understood to be something greater or superior in power and influence to others, with which it is connected or compared. So understood, a predominant motive, when several motives may have operated, is one of greater force and effect, in producing the given result, than any other motive. But the Court are of opinion, that if the false and fraudulent representation was a motive at all, inducing to the act, if it was one of several motives, acting together, and by their combined force, producing the result, it should have been left to the jury so to find it. If the false suggestion had no influence, if the plaintiff’s agent would have done the same thing and made the sale, if such representation had not been made, then it was not a motive to the act, and the plaintiff’s agent was not induced to sell by means of it. On the whole, considering that the ordinary and natural meaning of the term “ predominant,” when applied to one among several motives, is such as has been stated, that the jury may have so understood it, and if
One question arose at the trial, and has been considered at the bar, upon which it may be convenient to have the opinion of the Court, in case of a new trial.
The defendants, for the purpose of disproving the fraud charged'upon them, and also as proper for the consideration of the jury on the question of damages, if they should find for the plaintiff, offered evidence tending to prove that the sum of thirteen hundred dollars, which was paid by them to the plaintiff, was the true and full value of the plaintiff’s quarter of the brig. The plaintiff objected to the admission of this evidence, insisting, that if the defendants had by fraud deprived him of his quarter of the brig, they were bound to pay him at the rate at which they had sold her. The Court are of opinion, that the evidence is competent upon both points. It may bear upon the question of fraudulent representation and fraudulent intent, though perhaps slightly and remotely. It may have a tendency to show, that at all events, the plaintiff or his agent would have sold her at the price offered, and thus tend to disprove the fact of fraudulent representation. So, upon the question of damages, the actual price, at which the defendants sold the vessel, especially if they received the money, would be by far the most satisfactory evidence of value, and that which the jury would probably adopt, but not conclusive. It may be, that the price named was a barter price, or that the sale was made oh bad security, and the money never realized, or that something besides the mere money value of the vessel, entered into the contract of sale. If there were no such circumstances, the price which the defendants actually obtained, would seem to be the proper measure of damages, not only because it would be unjust to permit a fraudulent party to retain the fruits of his fraud, but because, if the plaintiff’s agent had not been induced to sell to the defendants at the under price, those who stood ready to purchase, would have come to him and offered the larger price, which they were ready to give to the detenu
New trial granted.