| Mass. | Mar 1, 1876
No question of pleading arises up_n the bill of exceptions ; nor does it state all the instructions given to the jury. Under the instructions reported upon the point raised, and those which, in the absence of anything to the contrary, we must presume to have been given, the jury have found that the allegations of the first count were proved.
The defendant asked the court to rule, in substance, that if the plaintiffs took time to inquire as to the responsibility of the maker, availed themselves of the common knowledge and judgment as to his pecuniary standing, and were influenced by what they heard before taking the note, they could not recover. But, instead of this, the court told the jury that it was not necessary for the plaintiffs to satisfy them that the alleged .representations were the sole cause, or the sole operating cause, inducing the plaintiffs to take the note; for if they would not have taken it except for the defendant’s representations, then they could recover, although they were in part controlled by other influences, for which he was not responsible.
The instruction thus given appears to have been well adapted to and sufficient for the case presented by the evidence, and the instruction requested was properly refused. It is not necessary that the false representations should have been the sole or even the predominant motive; it is enough if they had material influence upon the plaintiff, although combined with other motives. Matthews v. Bliss, 22 Pick. 48.
The case does not disclose the precise character of the representations made by the defendant; no objection was made that they were mere expressions of opinion, judgment or estimate, or were intended to be understood as expressions of belief only. We must presume that they were legally sufficient to support the action; that is to say, that they were statements of facts susceptible of knowledge, as distinguished from matters of mere opinion or belief; and that they were calculated to have and did have material influence in deceiving the plaintiffs as to the maker’s means and ability to pay, and in inducing them to part with their property. Page v. Bent, 2 Met. 371" court="Ky. Ct. App." date_filed="1859-12-06" href="https://app.midpage.ai/document/mershon-v-commonwealth-7129788?utm_source=webapp" opinion_id="7129788">2 Met. 371. Milliken v. Thorndike, 103 Mass. 382" court="Mass." date_filed="1869-11-15" href="https://app.midpage.ai/document/milliken-v-thorndike-6415928?utm_source=webapp" opinion_id="6415928">103 Mass. 382. Lobdell v. Baker, 3 Met. 469.
The question put to Coburn, one of the plaintiffs, as to the influences which operated upon him in making the sale, was properly allowed, in the absence of any objection to its form. Knight v. Peacock, 116 Mass. 362" court="Mass." date_filed="1874-12-04" href="https://app.midpage.ai/document/knight-v-peacock-6417892?utm_source=webapp" opinion_id="6417892">116 Mass. 362.
The adjudication in bankruptcy was properly admitted, under the limitations stated to the jury as to use they might make of it as evidence in the case.
The promissory notes owned by the defendant, and proved by himself and Gilley against the estate of the maker of the note in bankruptcy, for the purpose of showing the fact and the amount of his indebtedness, and the defendant’s knowledge of it, were properly admitted as material evidence upon the issue in-, valved, and not too remote. Holbrook v. Jackson, 7 Cush. 136.
The first question asked of the witness Chapin was preliminary, and his testimony that his debt against Smith was adjusted by the defendant’s note or indorsement was properly admitted, as tending to show a knowledge on "the part of the defendant that Smith could not at that time pay his debts in the ordinary course of business. The mortgage from Smith to the defendant was competent evidence for the same reasons.
As to the evidence, offered by the defendant, of the agreement under which the two notes were given by Smith to him, and which was excluded by the court, it is sufficient to say that nothing appears to show that it was material to any question at issue. The ruling must be presumed to be correct, unless there is something in the bill of exceptions to show affirmatively that it is not. Bannister v. Alderman, 111 Mass. 261" court="Mass." date_filed="1873-01-15" href="https://app.midpage.ai/document/bannister-v-alderman-6417113?utm_source=webapp" opinion_id="6417113">111 Mass. 261. Burke v. Savage, 13 Allen, 408. Exceptions overruled.