Belcher v. Costello

• Decision Date: 06 March 1877
• Citation: 122 Mass. 189
• Parties: John Belcher v. John F. Costello
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 189

John Belcher v. John F. Costello

Supreme Court of Massachusetts

March 6, 1877

Argued November 15, 1876

Suffolk. Tort for deceit. At the trial in the Superior Court, before Pitman, J., the jury found for the plaintiff; and the defendant alleged exceptions, which, so far as material appear in the opinion.

Exceptions sustained.

A. A Ranney, (H. E. Swasey with him,) for the defendant.

G. E Smith, for the plaintiff.

Endicott J. Ames & Lord, JJ., absent.

OPINION

Endicott

The defendant, having bought merchandise of the plaintiff, and paid a portion of the purchase money in cash, gave as collateral security for the balance certain notes of third persons, one of which was secured by a mortgage of real estate. The plaintiff offered evidence that the defendant represented that the notes and the persons who made them were good, and that the land covered by the mortgage had been sold for $ 2600. It appears in the papers that this alleged sale was made by one Lowell to Currier, and that Currier gave back to Lowell the mortgage in question, which was afterwards assigned to the defendant. The statement was not in regard to the price paid by the defendant, but by a third person, for the property, and comes clearly within the rule laid down in Medbury v. Watson, 6 Met. 246, 259. It was therefore competent for the plaintiff to prove that the representation was false and fraudulent. It was the representation of a particular fact in regard to the value of collateral security, upon which the plaintiff might rely, and, upon discovering it to be false and fraudulent, could maintain his action. Manning v. Albee, 11 Allen 520. It is immaterial that the mortgage note was not indorsed, or the mortgage assigned by the defendant, when taken as collateral security by the plaintiff. The note was payable to the order of Lowell, and indorsed by him. The plaintiff took a good title to it upon delivery, and the defendant could have been compelled in equity to foreclose or assign the mortgage for the benefit of the plaintiff. Parsons v. Welles, 17 Mass. 419, 424. Crane v. March, 4 Pick. 131. Young v. Miller, 6 Gray 152, 156. The rulings of the presiding judge on this point were correct.

The remaining exception relates to the representations that the notes and the parties who made them were good. The provisions of the Gen. Sts. c. 105, § 4, have no application to this case. They apply only when the purpose of...