Packer v. Lockman

115 Mass. 72 | Mass. | 1874

Wells, J.

The plaintiffs allege that they were induced to sell and deliver two cargoes of coal, supposing that they were making the sale to, and upon the credit of C. F. Clark & Co., of Waltham, who were responsible parties; that they were misled into this supposition by the deceit and fraud of the defendant Lockman, who thereby obtained control and possession of the coal, and delivered it to the other defendants, who knew of and participated in the fraud upon the plaintiffs. To maintain the action upon this ground it was necessary for them to prove, not only the deceit and fraud of Lockman, but also that they relied on and were in fact misled by it, in the sale and delivery of the coal. For this purpose, as well as because they formed inseparable parts of the transactions of sale and delivery, the orders from Little to his principals to forward the coal, the bills of lading accompanying it when forwarded, the invoices sent in the usual course of business, and the transcripts thereof delivered by Little to Lockman were competent and admissible in evidence. The bills of lading and transcripts were also competent to show that Lockman was informed, before disposing finally of the coal, and the other defendants when they received it, that the plaintiffs did suppose they were selling to C. F. Clark & Co., of Waltham. The only question raised by the exception is of the admissibility of the evidence.

The objection argued here as to its competency upon the other branch of the issue, to wit, the misrepresentations and fraud of Lockman, does not appear to have been made at the trial. No ruling was asked for to limit the effect of the evidence; or at least, no exception taken to any ruling given or refused in that respect. The objection to the admission of the evidence must fail if it was admissible for any purpose.

The question of admissibility is not changed by the testimony on the part of the defendants tending to show another reason assigned by Little for ordering the coal in the name of C. F. Clark & Co. As already suggested, it was a question of the admissibility and not of the effect of the evidence.

For like reasons the evidence of the price at which Love, Hayward & Co. sold the coal was admissible.- Their mode of dealing with it might tend to show that they were aware of and participated in the fraud by which it was obtained. Whether it did so or not was for the jury to consider.

The admission of the answer of the plaintiffs, “ that they did not propose to accept 35 cents per ton off,” in reply to an inquiry for instructions in regard to Lockman’s proposal for such an abatement, is not good ground of exception ; and that point has not been pressed at the argument. Exceptions overrul 3d.