Bank of Commerce & Trust Co. v. Schooner

• Decision Date: 02 April 1928
• Citation: 263 Mass. 199,160 N.E. 790
• Parties: BANK OF COMMERCE & TRUST CO. v. SCHOONER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 199

160 N.E. 790

BANK OF COMMERCE & TRUST CO.

v.SCHOONER.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1928.

Report from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of tort by the Bank of Commerce & Trust Company against Joseph Y. Schooner to recover for a conspiracy to defraud. Demurrer to the substituted declaration was overruled, and case reported. Order overruling demurrer affirmed.J. J. Kaplan, of Boston, for plaintiff.

A. S. Allen, of Boston, for defendant.

CROSBY, J.

This case arises on demurrer to a declaration setting forth a conspiracy to defraud, entered into by and between the defendant and one Cox, by means of which, it is alleged, they fraudulently obtained large sums of money from the plaintiff.

After overruling a demurrer to the substitute declaration, the case was reported to this court by the trial judge upon the substituted declaration and the demurrer. The defendant assigned fifty-six grounds of demurrer, but expressly waived the following: 7 to 9, inclusive, 15 to 25, inclusive, 29, 30, 39 to 44, inclusive, 52 and 53. We will consider the remaining grounds of demurrer in the manner they are dealt with in the defendant's brief.

It is the contention of the defendant that the declaration does not state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action as required by G. L. c. 231, § 7, cl. 2. This objection is raised by grounds numbered 1, 2, 3, 10, 11, 12, 14, 27, 28, 31, 32, 33, 34, 36, 37, 38, 47, 48, 49, 50, 51, 54, 55, and 56, The declaration alleges a conspiracy between the defendant and Cox to defraud certain banks and trust companies; it alleges specifically the means employed in pursuance of the scheme, and that such scheme was employed by the defendant and Cox in a manner set forth with adequate particularity to defraud the plaintiff and that it was thereby defrauded to its damage. G. L. c. 231, § 7, cl. 2, is as follows:

‘The declaration shall state concisely and with substantial certaintythe substantive facts necessary to constitute the cause of action.’ Davis v. H. S. & M. W. Snyder, Inc., 252 Mass. 29, 34, 35, 147 N. E. 30.

A careful examination of the allegations in the declaration shows that the substantive facts relied on are set forth specifically, concisely and with substantial certainty, and that it is not demurrable upon the grounds above referred to. Read v. Smith, 1 Allen, 519, 520.

[2] The objection that certain allegations relate to matters between Cox and third parties cannot be sustained. These allegations are material as describing the fraudulent plan, and for that reason are neither irrelevant nor immaterial. See Gardner v. Preston, 2 Day (Conn.) 205, 2 Am. Dec. 91. It follows that the following grounds of demurrer are without merit: 4, 6, 26, 35, and 45.

Allegations of result are allegations of fact and are not conclusions of law. Accordingly the thirteenth ground of demurrer is overruled.

The ground that the allegations relate to matters of evidence, and are not such ultimate facts as properly could be alleged is overruled. These allegations pertain to conclusions of fact and are properly pleaded. Cosmopolitan Trust Co. v. S. L. Agoos Tanning Co., 245 Mass. 69, 139 N. E. 806. Accordingly the fifth and forty-sixth grounds are overruled.

[5] The remaining question argued by the defendant is that the declaration alleges representations which are within the statute of frauds (G. L. c. 259, § 4), and for that reason the plaintiff is barred from recovery. That statute has not altered the rules of pleading in law or equity. Whether the representations alleged in a declaration are oral or written is a matter of proof and not of allegation. Price v. Weaver, 13 Gray, 272. Where representations alleged are within the terms of the statute, a declaration upon them need not allege that they are in writing. Elliott v. Jenness, 111 Mass. 29. As a defense the statute may be pleaded or waived at the election of the defendant. Livingstone v. Murphy, 187 Mass. 315, 318, 72 N. E. 1012,105 Am. St. Rep. 400. If it appears from the declaration in an action at law, of from the bill in a suit in equity, that the representations alleged are oral, when by the statute of frauds they must be in writing, demurrer will lie. Walker v. Locke, 5 Cush. 90;Ahrend v. Odiorne, 118 Mass. 261, 268,19 Am. Rep. 449;Southwick v. Spevak, 252 Mass. 354, 357, 147 N. E. 885;Linsky v. Exchange Trust Co. (Mass.) 156 N. E. 689;Quinn v. Quinn (Mass.) 157 N. E. 641.

If the declaration in the case at bar could be considered as coming within the terms of the statute, and if it alleges express representations on the part of the...