Holst v. Stewart

Decision Date23 October 1891
Citation154 Mass. 445,28 N.E. 574
PartiesHOLST v. STEWART et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

F.A. Perry, for plaintiff.

Moulton Loring & Loring, for defendants.

OPINION

LATHROP J.

The declaration in this case contains three counts, the first two of which are for distinct torts. The third count is in contract, for money had and received, and apparently applies to the cause of action set forth in the fist count. A general demurrer was filed to the first two counts, which were overruled in the superior court, and the defendants appealed to this court. The case was then tried in the superior court. The judge ruled that the plaintiff could not maintain his action on the first and third counts, to which ruling no exception was taken by the plaintiff. The case was submitted to the jury on the second count, a verdict was returned for the plaintiff, and the defendants excepted to the refusal of the judge to give certain instructions requested. In this position of the case it does not appear to us to be necessary to decide whether the first and third counts set forth a good cause of action, and we confine ourselves to the second count, and to the defendants' exceptions. The second count alleges, in substance, that the plaintiff bought of one Saunders a tenement and lot of land in North Stoughton; that the defendants, to induce the plaintiff to purchase the same, "falsely represented to the plaintiff that the railroad trains took aboard passengers at, and left the depot in, North Stoughton, nearest to" said tenement and lot, "for Boston, every week day at 5:50 of the clock in the morning, and lots of times out from Boston which would stop at North Stoughton in the evening;" that the plaintiff, believing the representations to be true was thereby induced to purchase said tenement and lot of land; that the representations were untrue; and that the plaintiff was prevented from getting to and from his work in Boston without great additional expense and loss of time, and was compelled to keep a horse and wagon therefor. The principal objection to the declaration is that it does not allege that the representations were fraudulently made. Fraud is undoubtedly the gist of the action. It is not enough to allege a false representation, but in some form it should be alleged that the representation was fraudulently made. Pearson v. Howe, 1 Allen, 207; Insurance Co. v Matthews, 102...

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12 cases
  • Nash v. Minnesota Title Insurance & Trust Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 12, 1895
    ...... Insurance Co. v. Matthews, 102 Mass. 221;. Furnace Co. v. Moffatt, 147 Mass. 403, 18 N.E. 168;. Fisher v. Mellen, 103 Mass. 503; Holst v. Stewart, 154 Mass. 445, 28 N.E. 574. See, also, Page. v. Parker, 40 N.H. 47; Hammatt v. Emerson, 27. Me. 308; Marsh v. [163 Mass. 579] . ......
  • Mignault v. Goldman
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 29, 1919
    ...345, 24 N. E. 52,21 Am. St. Rep. 454;Roberts v. French, 153 Mass. 60, 26 N. E. 416,10 L. R. A. 656, 25 Am. St. Rep. 611;Holst v. Stewart, 154 Mass. 445, 28 N. E. 574;Brady v. Finn, 162 Mass. 260, 38 N. E. 506; Kilgore v. Bruce, supra; Long v. Athol, 196 Mass. 497, 504, 82 N. E. 665,17 L. R.......
  • Nash v. Minnesota Title Ins. & Trust Co
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 12, 1895
    ...Co. v. Matthews, 102 Mass. 221;Furnace Co. v. Moffatt, 147 Mass. 403, 18 N.E. 168;Fisher v. Mellen, 103 Mass. 503;Holst v. Stewart, 154 Mass. 445, 28 N.E. 574. See, also, Page v. Parker, 40 N.H. 47;Hammatt v. Emerson, 27 Me. 308;[163 Mass. 579]Marsh v. Falker, 40 N.Y. 562; Chester v. Comsto......
  • Nash v. Minnesota Title Insurance & Trust Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 24, 1893
    ...... foundation of a recovery. Furnace Co. v. Moffatt,. 147 Mass. 403, 18 N.E. 168; Carroll v. Hayward, 124. Mass. 120, 122; Holst v. Stewart, 154 Mass. 445, 28. N.E. 574; Belcher v. Costello, 122 Mass. 189;. Gordon v. Butler, 105 U.S. 553; Derry v. Peek,. L.R. 14 App.Cas. ......
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