Sweet v. Kimball, 166 Mass. 332

166 Mass. 332 | Mass. | 1896

Holmes, J.

There is no doubt that it is actionable to induce a man to come into this State by fraudulent representations, with intent to arrest him after he gets here. Cook v. Brown, 125 Mass. 503. Wanzer v. Bright, 52 Ill. 35. But the defendant in support of his demurrer says that when it is alleged that the defendant fraudulently represented that if the plaintiff would come to Boston the defendant would do certain things, the so called representation relating wholly to the future was a contract or nothing, and therefore could not be fraudulent. But the allegation is elliptical. The fraud intended is not the failure of the representations to come true, or, in other words, the failure of the defendant to keep his promise. What is meant is, that the defendant’s promises purported to be made for ordinary business reasons, or from good will to the plaintiff, whereas in fact they were made as a device to lure the plaintiff into the State. Probably it is meant, further, that there was a fraudulent misrepresentation of the defendant’s intention to ' keep his promises. Whether there is more difficulty in the way of treating any misrepresentation of intent to perform a contract as a fraud and a tort than there is with regard to representations of intent in general, or intent to pay the price of goods in particular, it is unnecessary to consider, since we are of opinion that the use of the promises as a device, as above explained, is a sufficient fraud. Commonwealth v. Rubin, 165 Mass. 453. The demurrer properly was overruled. See further Williams v. Reed, 5 Dutch. 385, 387.

The second question argued is, that the court ought to have directed a verdict for the defendant on the second count. This alleges a wrongful arrest, and compelling the plaintiff to pay seven hundred dollars to obtain his release. Assuming that the former allegation alone would not justify a recovery where the process was lawfully issued by a court having jurisdiction, yet we think that the count may be regarded as a count to recover money paid under duress, and the former allegation as merely a specification of the nature of the duress. It is true that the present plaintiff could have got rid of the action in which he was arrested sooner or later by bringing the facts to the attention of the court, but that consideration is not enough to prevent the wrongful arrest of a stranger away from his friends, probably unable to give security and without counsel, from being a very grievous form of duress, and it requires no innovation to decide that money paid to be free from it may be recovered. Clark v. Woods, 2 Exch. 395, 406. Grainger v. Hill, 4 Bing. N. C. 212.

In the view which we have taken of the two counts on which the case was tried, the addition of the third count after the trial was unnecessary, and it also is unnecessary to consider whether, if the verdict could not be sustained on the pleadings on which it was rendered, it could be saved by this amendment after the defendant’s demurrer and requests for rulings.^*

The defendant was allowed to testify that he never had an intention of arresting the plaintiff until he received a letter from a Rhode Island creditor on the day of the arrest. He testified that on the morning of that day he went to another creditor, and had a conversation with him about the plaintiff’s affairs. A question as to what the defendant did after that, as a result of his conversation, was excluded. It is said that the evidence should have been admitted as bearing on the defendant’s intent. The defendant’s intent at that time was immaterial. That he had no intent to lure the plaintiff into the State at an earlier time, when he made his promises, he had sworn already.

It is argued that there was an error committed in allowing the defendant to be charged for the sums paid by the plaintiff to settle two other suits. We do not perceive how this question is open on the report. But if any part of the plaintiff’s case was believed by the jury, it was not very difficult to infer that those who profited by the plaintiff’s arrest did so through the contrivance of the defendant.

Judgment on the verdict.

* The rulings requested were as follows:

“ 1. Upon all the evidence in the case, the plaintiff cannot recover upon either count of the declaration. 2. There is no evidence of any false or fraudulent pretence used by the defendant to induce the plaintiff to come within the Commonwealth. 3. If the plaintiff can recover at all, he. cannot recover for anything which occurred after his arrival in Boston, but can recover only for the loss of time, expenditure of money, and neglect of business in making the trip. 4. There is no evidence upon which the plaintiff can recover under the second count of the declaration. 5. By his settlement of the defendant’s suit the plaintiff waived the illegality of his arrest (if it were illegal) and submitted himself to the jurisdiction of the court to which the writs were returnable. 6. There is no evidence of duress that would, for the purposes of this case, invalidate or avoid the settlement made by the parties to the original suit. ' 7. There is no evidence of fraud that would, for the purposes of this case, invalidate or avoid the settlement made by the parties to the original suit. 8. Even if duress was used to effect the settlement, the settlement cannot thereby be avoided in this suit so as to enable the plaintiff to recover back in this suit money paid to effect the settlement.”