McCusker v. Geiger, 195 Mass. 46

McCusker v. Geiger

195 Mass. 46 | Mass. | 1907

KífOWLTOír, O. J.

The defendants took exceptions to the refusal of the judge to give certain rulings requested on questions of law at the hearing upon the exceptions to the master’s report. These exceptions were allowed and are now before us for consideration. What is called a final decree was entered in the case and an appeal was taken therefrom.

The entry of this decree was irregular and unwarranted. The pendency of exceptions deprived the court of the power to enter a final decree, which, like a formal judgment in an action at law, is a final disposition of the case unless an appeal is sub*52sequently taken. R. L. c. 173, § 79. Tyndale v. Stanwood, 186 Mass. 59, 63. Prescott v. Prescott, 175 Mass. 64. Goff v. Britton, 182 Mass. 293. The decree had no greater effect than an order for a decree, which cannot be executed until the exceptions are disposed of. The appeal is not before us, and the case must be determined on the bill of exceptions.

While it is possible, under the R. L. c. 173, § 106, to raise questions of law by exceptions where the hearing is upon an issue of law, and where there is a simple and perfect remedy by an appeal, (see National Mahaiwe Bank v. Barry, 125 Mass. 20, Southbridge Savings Bank v. Exeter Machine Works, 127 Mass. 542, Snow v. Boston Blank Book Manuf. Co. 153 Mas. 456,) it is the simpler and better practice in such eases, as was said in McCallum v. Lambie, 145 Mass. 234, to bring the questions of law directly to this court by an appeal. Except in actions at law in the Supreme Judicial Court, it is ordinarily unnecessary to take exceptions in a hearing upon a demurrer or a motion to quash. Exceptions to a master’s report in a suit in equity present the questions of law in a proper form to be carried directly to the full court upon an appeal. O’Brien v. Keefe, 175 Mass. 274. To take exceptions at such a hearing ordinarily results in an unnecessary encumbrance upon the record.

The questions raised by the bill of exceptions are, m substance, whether it was competent for the plaintiff to prove by parol evidence the collateral oral agreement upon which he relied; whether the parol evidence recited in the master’s report was competent to prove actionable fraud upon the part of Geiger; and whether upon the facts reported such fraud was made out.

1. The plaintiff contends that it is competent for him to prove an oral agreement made with him by the defendant Geiger, before and at the time of the execution of the written agreement, and at the time of the delivery of the deeds, that Geiger would discharge the $2,250 mortgage to be given by the plaintiff, upon the plaintiff’s paying the sum of $250 and discharging the $2,000 mortgage upon the Newton property, — that is, that all that the plaintiff was to pay upon the mortgage given by him was the sum of $250. The master has found that this agreement was in fact made, substantially as alleged by the *53plaintiff. But we are of opinion that this contention of the plaintiff cannot be sustained. This oral agreement is inconsistent with the written agreement of exchange made by the parties, and directly at variance with the terms of the $2,250 mortgage note given by the plaintiff to Geiger. The note is an unconditional promise to pay in money; the contemporaneous oral agreement is that it shall be paid only partly in money and partly by discharging another mortgage upon other property. It is in substance an agreement for a partial set-off of the two notes, instead of their payment in money. Such a contemporaneous oral agreement cannot be shown to vary, contradict and control the written agreement. Torpey v. Tebo, 184 Mass. 307. Finnigan v. Shaw, 184 Mass. 112. Taylor v. Coding, 182 Mass. 231. Merrigan v. Hall, 175 Mass. 508. The plaintiff, having voluntarily made and delivered this note, cannot defend against it by showing an oral agreement that it should be paid in any other way than that stated in the note itself. Wood’s Sons Co. v. Schaefer, 173 Mass. 443. Wooley v. Cobb, 165 Mass. 503. Tower v. Richardson, 6 Allen, 351. Adams v. Wilson, 12 Met. 138. Underwood v. Simonds, 12 Met. 275. Nor was this evidence competent to show the real consideration of the note. On the undisputed facts it appeared exactly what that consideration was. As is shown by the master in his careful report, it did not tend to show any defect in or failure of the consideration of the mortgage and note given by the plaintiff. The stipulation that the $2,000 note might be given by a mere man of sti’aw shows that it was not contemplated that Geiger should be held personally for its payment. It is true that an agreement by parol collateral to the written agreement between these parties and on a subject distinct from that which is provided for by the latter may be proved; but this doctrine cannot be extended to contemporaneous oral agreements on their face inconsistent with what is written, and so cannot avail the plaintiff. Durkin v. Cobleigh, 156 Mass. 108, 109. There is nothing in Drew v. Wiswall, 183 Mass. 554, Cole v. Hadley, 162 Mass. 579, or Corlies v. Howe, 11 Gray, 125, inconsistent with this. Nor was there anything to indicate that the oral agreement was in any way made a condition precedent to the taking effect of the written agreement or of the deeds, notes or *54mortgages delivered thereunder, within the rule of Elastic Tip Co. v. Graham, 185 Mass. 597, and Wilson v. Powers, 181 Mass. 539. See Radigan v. Johnson, 174 Mass. 68. The plaintiff can derive no benefit from proof of this contemporaneous oral agreement.

2. In our opinion the master correctly ruled that it was competent to prove oral declarations of . the defendant Geiger for the purpose of showing a fraudulent scheme for inducing the plaintiff to enter into the contract of exchange; and if the plaintiff’s full contention had been made out by the proof, he well might have claimed that the $2,250 note and mortgage had been obtained from him by the fraud of Geiger, and so that he had a right to refuse to be bound by them. That contention is correctly stated by the master in his report. It was “ that Geiger falsely represented the purpose for which he desired to have McCusker give the mortgage of $2,250 on the Washington Street property, and promised to discharge it upon the payment of $250 and the discharge of the second mortgage on the Newton property, intending all the time not to keep that promise.” The gist of the fraud alleged is that Geiger had obtained from the plaintiff a note and mortgage for $2,250 instead of for only $250, with the affirmative intention of not keeping the promise by which he obtained them. The case is perfectly analogous to the ordinary case of one buying goods with the intention of not paying for them. Although the general rule is that a fraudulent representation, to be actionable, must be of a material existing fact, and not merely promissory in its nature, yét the act of obtaining property with such a fraudulent intention is of itself an actionable fraud. Dow v. Sanborn, 3 Allen, 181, 182. Kline v. Baker, 99 Mass. 253, 255. Watson v. Silsby, 166 Mass. 57, 59. But the difficulty with this part of the case is that the essential feature of this contention of the plaintiff is not found by the master. The finding is that Geiger’s promises were made without the intention of performing those promises,” and upon the facts it would have been difficult for the master to have gone further than this.* But the distinction between an affirmative intention not to keep one’s promises, which is an actionable fraud, and the mere absence of an intention to perform them, which is not of itself actionable, was pointed out *55by this court in Watson v. Silsby, 166 Mass. 57, and in Chamberlain v. Hoogs, 1 Gray, 172, 174, 175. The only remaining fact found by the master, that “ Geiger falsely represented the purpose for which he desired to have McCusker give the mortgage of $2,250 on the Washington Street property,” is manifestly not sufficient to entitle the plaintiff to avoid his agreement. The wrong done to the plaintiff did not come from this misrepresentation, but from Geiger’s refusal to carry out his oral agreement. Dawe v. Morris, 149 Mass. 188. Knowlton v. Keenan, 146 Mass. 86. The cases cited by the plaintiff to show that there may be circumstances in which a misstatement of an existing intention will constitute a misrepresentation of a fact and so may amount to actionable fraud, are not material here.

8. It follows from what we have said that the plaintiff shows no right against the defendant Geiger to redeem from the $2,250 mortgage upon the Washington Street property, except upon payment of the full amount due thereon; and it is not necessary to determine whether the defendant Brewster had the full rights of a holder of the note in due course, or whether he had notice of the oral agreement between the plaintiff and the defendant Geiger. It is unnecessary to consider the requests for rulings more particularly.

Exceptions sustained.