Ahern v. McGlinchy

• Decision Date: 04 June 1914
• Parties: AHERN v. McGLINCHY.
• Court: Maine Supreme Court

90 A. 709

112 Me. 58

AHERN

v. McGLINCHY.

Supreme Judicial Court of Maine.

June 4, 1914.

Motion and Exceptions from Superior Court, Cumberland County, at Law.

Action by Robert Ahern, administrator of the estate of John X. Welch, deceased, against James H. McGlinchy. There was a verdict for plaintiff, and defendant brings exceptions and makes a general motion for new trial. Exceptions sustained.

Argued before SAVAGE, C. X, and SPEAR, KING, HANSON, and PHILBROOK, JJ.

Dennis A. Meaner, of Portland, Me., for plaintiff. Connellan & Connellan, of Portland, Me., for defendant.

PHILBROOK, J. Action on the case for deceit, tried in superior court of Cumberland county, verdict for plaintiff, and defendant comes to this court on exceptions and general motion for a new trial.

On the 7th day of March, 1901, one Ellen McGlinchy, in consideration of $1 and other valuable considerations, conveyed a certain parcel of land to John X. Welch, plaintiff's intestate, and Mary Welch, his aunt, giving a warranty deed. The plaintiff claims that the defendant, acting as agent for the grantor, made false representations as to the title to the land; that the grantees relied on those representations, bought the land, and later found the title defective. On the 22d day of March, 1910, the grantees instituted equity proceedings to quiet title to the land. While these proceedings were pending John X. Welch died, and in September, 1910, the plaintiff appeared in the equity suit as his administrator. That suit was prosecuted to final decree, and in consequence thereof certain expenses were incurred by Mary Welch in her own behalf and by the plaintiff in his representative capacity. Although the warranty deed does not in fact state what fractional interest in the land was conveyed to John, and what to Mary, yet the record shows that defendant's counsel, without contradiction, was allowed to state during the trial that one-third interest was in John and two-thirds in Mary. The plaintiff, as administrator of John, brings this action on the case for deceit, and alleges the measure of damages to be the expense incurred in the equity suit to quiet title, and other incidental expenses, one-third of which he says he bore as administrator, and which third, amounting to $207.39, he received a verdict for at the hands of the jury. As to the rule or amount of damages we are not here concerned, for the parties appear to have agreed upon that point, for the purposes of this case, providing the plaintiff is entitled to recover any damages.

It does not appear, and the plaintiff does not claim, that the defendant ever made any false representations to John personally, but it is claimed that, in the transaction, Mary was acting as the agent of John, and that the false representations to her as the agent of John were, in law, representations made to John. This question of agency was submitted to the jury under instructions to which no exceptions were taken, and which were correct. We have examined the evidence carefully, and conclude that the jury were manifestly wrong in their finding upon this question of agency. For this reason the motion for a new trial should be sustained, and if that were the only question presented for our consideration, our task would end here.

But it is the opinion of the court that we should go farther and decide other questions which are properly involved in this suit. At the close of the plaintiff's testimony, without offering any evidence in his own behalf the defendant presented a motion asking that the presiding judge direct a verdict for the defendant. This motion was denied, and to that ruling the defendant filed exceptions, which were allowed.

It should be borne in mind that the equity suit referred to has been disposed of by a final decree from which no appeal was taken, and we are not now considering that suit The action before us was begun after the death of John X. Welch, by his administrator, and is an action on the case to recover damages alleged to be suffered by John in his lifetime. The recovery of damages is sought for the benefit of John's estate, the plaintiff declaring that:

"It was by means of the deception then and there practiced and the representations made by the defendant that said John X. Welch and his estate have suffered the losses herein described."

This action, being brought to recover damages claimed to be sustained by John because of the deceit of the defendant, is a personal action. Boyd v. Cronan, 71 Me. 286; Hall v. Decker, 48 Me. 255; Linscott v. Fuller, 57 Me. 406. This being true, does the cause of action survive either by common law or by the provisions of R. S. c. 89,...