125 Mass. 330 | Mass. | 1878
The general principle, that there is but one cause of action by reason of the conversion of various chattels at the same time, is admitted by the plaintiff. His claim is that, in a former action for the same conversion, the defendant fraudulently concealed the fact that the chattels, for the value of which this suit was brought, had been concealed by the defendant, who had fraudulently prevented the plaintiff from ascertaining the fact by refusing to allow him to examine the articles taken. It is not necessary to consider whether any refusal by the defendant to allow access to his building by the plaintiff for the purpose of ascertaining whether any and what property belonging to him was there can in law be fraudulent. We assume that the defendant did fraudulently conceal the fact that the articles which are the subject of the present suit were a part of the chattels originally taken. Assuming this, What is the effect? The cause of action (and the plaintiff had but one cause of action) was not concealed. The plaintiff knew its existence, brought his action upon it, recovered judgment, and that judgment was satisfied. The fraud was in preventing the plaintiff from proving in that case the full extent of his damage. With the right of the plaintiff to require full disclosure of all facts necessary to his case, upon interrogatories filed, the power to compel him to produce all documents, and to examine him as a witness, and the authority of the court to allow amendments, it is difficult to understand how the defendant could fraudulently conceal from the plaintiff the extent of the damages sustained, even if it is any part of the defendant’s duty to afford such facilities. We should certainly be inclined to regard the failure of the plaintiff to make the proper proofs as evidence rather of his own loches, than of a fraud of the defendant, at least until he had exhausted the means within his power to ascertain the extent of his damages. But assuming the fraud to the extent claimed by the plaintiff, the former judgment is, while it remains unreversed, upon principle and authority, a bar to thia suit. Folsom v. Clemence, 119 Mass. 473, and cases cited.
Exceptions sustained.