Teague v. Irwin

134 Mass. 303 | Mass. | 1883

Morton, O. J.

1. The defendant objected to the admissibility of the evidence of the sale by auction of the stock in question, under the second count, solely upon the ground that the two counts of the declaration were improperly joined; and asked the court to rule “ that the count in tort for deceit, and the count in contract, based upon an alleged rescission of the contract, could not be said to be for the same cause of action, and could not stand together.” The court rightly refused this ruling.

If a man is induced by false and fraudulent representations to buy goods of another, he may have the choice of two remedies. He may have an action of tort for the deceit, or, if he has taken the proper steps to rescind the contract, he may have an action of contract to recover back the price paid. Both these remedies proceed upon the ground of the fraud practised on him, and are not inconsistent or contradictory.

If the plaintiff is in doubt as to the legal effect of his evidence, he may, under our practice act, properly join in one action a count for the tort and a count in contract to recover the price. If there is any danger of confusion or injustice, the defendant should apply to the court, at the close of the evidence, to order the plaintiff to elect upon which count he will go to the jury, the court having the power in its discretion to make such order. Pub. Sts. c. 167, § 2. Atwater v. Clancy, 107 Mass. 369. Mahon v. Blake, 125 Mass. 477. New Haven & Northampton Co. v. Campbell, 128 Mass. 104.

2. The defendant introduced as a witness one Hills, the treasurer of the company, who produced his journal or cash-book, and testified that he showed it to the plaintiff before he bought his stock of the defendant. This was for the purpose of showing that the plaintiff was not deceived as to the condition of the company, as he claimed to be. It was clearly competent for the plaintiff to cross-examine Hills as to the manner of keeping this book, and to show that it was not fairly kept, and did not contain a correct statement of the affairs of the company. The cross-examination of Hills, which the defendant objected to, tended to show this, and was rightly permitted by the court.

3. The defendant called as a witness one Parks, the manager of the company, who testified that, in June 1877,.he discharged the plaintiff from the employ of the company, and he detailed the conversation which then took place. In reply, the plaintiff testified that Parks did not discharge him; and was allowed, against the defendant’s objection, to testify to a conversation between 'himself and Parks in June 1877. Even if Parks’s testimony was immaterial, it was competent for the court to permit the plaintiff to give his version of the conversation to which it related. The bill of exceptions does not distinctly state that the plaintiff testified to the same conversation referred to in Parks’s testimony; but it does not show or lead to the inference that it was a different conversation, and therefore does not show that the testimony of the plaintiff was improperly admitted. Exceptions overruled.