Whittemore v. Ware

101 Mass. 352 | Mass. | 1869

Wells, J.

If this case had been presented upon a demurrer to the declaration, we should have had great doubts whéther a legal cause of action is sufficiently set forth. The only fraud charged in the letter directly is the fraud of Tompson. That it was “in the matter of your (Tompson’s) fraudulent transactions with Whittemore ” does not imply that Whittemore committed fraud. The character of the transaction “in reference to the estate on Marshall Street” is not set forth, nor Whittemore’s connection with it. It is not made to appear that the threatened suit against Tompson “el aV’ meant a suit against Tompson and Whittemore. The meaning of the last sentence, “ If you have anything to say why you should not be classed with Whittemore el al. in this affair,” &c., is rendered ambiguous by an intervening sentence referring to another matter than the fraud first alluded to. As the letter does not contain a direct charge of fraud upon Whittemore, the declaration seems to be deficient in not setting out such explanatory facts as would show that the charge of fraud, which it makes, applies to Whittemore as well as to Tompson.

But this deficiency, which is not of substantial allegation but of mere colloquium, is supplied by the answer, which sets out those facts in order to found upon them the defence of privilege, and explicitly concedes that the charge in the letter, as well us the proposed suit, was against Whittemore and Tompson jointly. Upon the trial of the issue so made up by the pleadings, the defendant cannot avail himself of the original defect in the declaration. Vinal v. Richardson, 13 Allen, 521. The ruling of the court below at this stage of the case, was therefore wrong. Exceptions sustained