206 Mass. 144 | Mass. | 1910
The very full and complete findings of fact made by the judge before whom the case was tried without a jury, having been well warranted by the evidence so far as it appears in the record, are conclusive. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. It is manifest that the plaintiff . paid over the money in controversy upon the material misrepresentations made to its treasurer and business manager by the defendant’s counsel and agent accompanied by the written promise of reimbursement if it was subsequently called upon to repay the amount to the Ironton Door and Manufacturing Company from
The defendant contends that under the declaration the rulings upon the findings as to its liability, which were given at the plaintiff’s request, were erroneous, and that its requests, so far as not granted, were wrongly refused. The fourth and sixth counts were disposed of in the defendant’s favor, and the demurrer to the seventh count, although not expressly waived, has not been pressed. But even if redundant this count sets out a good cause of action for money had and received, while the fifth count expressly declares upon the promise in writing. Woodbury v. Post, 158 Mass. 140.
Nor was the plaintiff required to allege or prove that the defendant’s agent, whom the judge found to have been unaware of their falsity, knew that the representations were untrue. The plaintiff was induced to act to its harm and injury by relying upon what the agent said, and the defendant cannot escape repayment upon the ground that, although the statements were unfounded, the money can be retained because at the time it believed them to be as represented. Talbot v. National Bank of Commonwealth, 129 Mass. 67. Chatham Furnace Co. v. Moffatt, 147 Mass. 403. Nash v. Minnesota Title Ins. & Trust Co. 163 Mass. 574, 580. Adams v. Collins, 196 Mass. 422, 429. Griswold v. Hazard, 141 U. S. 260. The misrepresentation, that the plaintiff was not bound by the assignment to the bank because it had not formally accepted the instrument, was not, as the defendant assumes, a mistake of law, but of fact, and is to be classed with the other statements of which it formed an important part. Eustis Manuf. Co. v. Saco Brick Co. 198 Mass. 212, 218, 219, and cases cited. The defendant never acquired any title to the proceeds of the lumber, even if the plaintiff’s vendor obtained . from it without payment seven of the car loads and sold and re-1 shipped them to the plaintiff while in transit. The purchase was made in the ordinary course of business, without any intention to defraud, and while the buyer was solvent. If, by reason of the subsequent financial embarrassment of the Ironton company and the appointment of a receiver, there were equitable reasons which inclined him to admit the defendant’s moral right to a return of the lumber or possibly to recover the price as a
It would not diminish the defendant’s liability, but afford further ground for recovery, if its contention that the promise in writing did not cover the judgment which the plaintiff has been obliged to pay was sustained. Upon proof of one, where several material misrepresentations are alleged, the action can be maintained, and the judge was satisfied that among other inducements, the plaintiff relied on the defendant’s assurance that the writing protected it from loss at the suit, not only of the receiver, but of the bank.
But as judgment for the plaintiff was ordered without reference to any particular count, the scope and effect of the instrument remain for examination. The benefit conferred on the defendant by the immediate payment of the money was a sufficient consideration to support the promise. Train v. Gold, 5 Pick. 380, 384. Albro v. Merritt, 97 Mass. 517. It was intended to be, and was, a contract of indemnity, and should
It having been correctly ruled, that the contract covered the enforcement of the debt by suit in the name of the assignor for the benefit of the bank, which was brought and prosecuted to judgment, the judge properly declined to give the defendant’s remaining requests, and we discover no error of law in the rulings in favor of the plaintiff, to which the defendant excepted.
While the defendant’s exceptions must be overruled, the plaintiff’s exceptions because of this error must be sustained, but the new trial is to be confined to the assessment of damages only, from which the amount paid by the defendant since the present action was begun, may be deducted.
So ordered.
It appeared in evidence that on or about October 15,1904, demand was made by the Ironton Door and Manufacturing Company on the plaintiff for the price of the lumber, and thereupon, on that date, the Montgomery Door and Sash Company wrote to the Atlantic Lumber Company as follows : “ In reference to the Ironton matter, will state that we understand these people have gone into bankruptcy, and now they claim this lumber was positively assigned to the Second National Bank at the time of shipment. The lumber was not billed to us by the bank, of course, but on the bill-heads of the Ironton Door and Manufacturing Company. Whatever is done in the matter, you, of course, will stand back of us and be responsible for everything just as your Mr. Wilson agreed when here. We hope, however, we will not have any trouble in the matter.” To this the Atlantic Lumber Company replied on October 19, 1904, as follows : “ In reference to the Ironton matter, we beg that you will not communicate direct in reference to any letters sent to you, but that you will forward them to us, or copies of them, that we may suggest to you what to write.”