184 Mass. 276 | Mass. | 1903
The declaration contains three counts. The first is contract to recover a month’s salary as the defendant’s treasurer; the second is contract for not complying with certain promises made in the sale of certain stock to the plaintiff by the defendant; and the third is tort for deceit in the same sale. No question was raised as to the pleadings, whether for misjoinder of counts or otherwise, and the case went to trial upon the declaration as it stood. At the close of the evidence the plaintiff waived the second count and the case went to the jury upon the first and third counts, upon each of which there was a verdict for the plaintiff, the damages on the first being the full amount claimed, and upon the third, $1.
It is further contended by the plaintiff that the instructions given by the judge ignored the suppression by the defendant of the fact that a large portion of its capital stock had been used to secure the debt of the old corporation. The short answer to this is that this is not the fraud set out in the count, except so far as involved in the representations actually set out, and so far as involved with them the jury under the instructions were allowed to consider it. The result is that we see no error in the manner with which the court dealt with the requests, or in the instructions given.
As the question concerning the exclusion of the evidence of the amount for which the defendant’s property was finally sold is not argued, we consider it waived.
Exceptions overruled.