Brown v. Blunt

• Decision Date: 19 July 1881
• Citation: 72 Me. 415
• Parties: COLUMBUS BROWN v. JAMES P. BLUNT and another.
• Court: Maine Supreme Court

72 Me. 415

COLUMBUS BROWN v. JAMES P. BLUNT and another.

Supreme Judicial Court of Maine.

July 19, 1881

ON EXCEPTIONS.

An action on the case for deceit in selling to the plaintiff six wagons, in which the plaintiff alleges that the defendants had no interest in fact. The writ was dated February 23 1880.

Plea general issue.

The facts are stated in the opinion.

D D. Stewart, for the plaintiff.

From Lord COKE, to the present time, it has been the glory of the common law that it abhors fraud in whatever shape it may present itself.

" The common law," said all the judges of England in Fermor's case, 3 Coke 78, a, " doth so abhor fraud and covin, that all acts, as well judicial as others, being mixed with fraud and deceit, are in judgment of law, wrongful and unlawful."

Fraud," said PARKER, C. J. in Somes v. Brewer, 2 Pick. 192," vitiates all transactions, even those of a court of record."

" A learned writer terms fraud hydra multorum capitum. " BIGELOW, C. J. in Reynolds v. Reynolds, 3 Allen 606.

The present case presents one of those heads. It involves both fraudulent acts, in selling him the Huntress contract without telling him it was worthless, and fraudulent words in telling him that his title to six wagons was good. Pasley v. Freeman, 3 T. R. 51; Lee v. Jones, 17 C. B. (N. S.) 495; Com. v. Stone, 4 Met. 47; Lobdell v. Baker, 1 Met. 201; McCance v. R. R. Co. 7 Hurls & N. 490; Donovan v. Donovan, 9 Allen 140; Bigelow on Fraud, 4, 70, 71; Marston v. Knight, 29 Me. 341; Nowlan v. Cain, 3 Allen 261; George v. Johnson, 6 Humph. (Tenn.) 36; Bean v. Arnold, 16 Me. 251; Hussey v. Sibley, 66 Me. 192.

Folsom and Merrill, for the defendants, cited: Coe v. Persons unknown, 43 Me. 436; Walker v. Lincoln, 45 Me. 71; Sweet v. Brown, 12 Met. 177; Allen v. Holton, 20 Pick. 458; Munro v. Gardiner, 5 Am. Dec. 531; Leonard v. Vredenburg, Idem, 316; Benj. Sales, § § 428, 429; Add. Torts, § § 1218, 1226; Broom's Com. on Com. Law, 339; Chitty Contr. 682, 683; 10 Mass. 199; 25 Me. 247; Atwood v. Chapman, 68 Me. 40; 1 Addison Con. 242.

BARROWS J.

It appears in the exceptions, that the defendants, on May 5, 1877, had control of an execution which had been recovered in the name of a Skowhegan bank, against one Huntress and the plaintiff, upon a note in which the defendants were payees, and said Huntress and the plaintiff (as his surety) were original promisors. One of the defendants went with the attorney and sheriff to the plaintiff's house, with the avowed purpose of levying the execution upon the plaintiff's homestead; but such negotiations were then had between them that no levy was made, the plaintiff agreeing to go with them to the village, and give his note for the debt, secured by a conveyance of real estate, which he did on the same day, and then and there received from the defendants a written assignment of all defendant's interest in a certain agreement or contract in writing, which had been made some two years previously, between said Huntress and the defendants, whereby Huntress had agreed to build a certain number of wagons for the defendants, they furnishing certain stock and materials, the wagons and all materials to be and remain the property of defendants during the process of building, and until disposed of by them, when the proceeds were to be appropriated, first, to the payment of the defendants for such stock and material as they might furnish, and the residue to go to Huntress in payment for the labor and materials furnished by him. The assignment given by defendants to plaintiff, closes with the following significant language: " Meaning and intending to release and assign simply the interest which we now hold and retain in the said agreement, and the property specified therein. No claim to be made upon us in any event in regard to said matter or said property, and we are not to be liable for costs in looking up said property, or in any suit to enforce said agreement."

If the assumptions made by plaintiff's counsel in argument as to matters of fact were verified by the testimony reported, and there was evidence upon which the jury would have been justified in finding that the plaintiff, in the exercise of common prudence and caution, was nevertheless deceived by a false and fraudulent assertion on the part of the defendants, that they had a good title to six of the wagons referred to in the agreement, and was induced thereby to pay his money to the defendants for the assignment of a title, which not only was of no value, but which entailed upon him a heavy loss in endeavoring to enforce it, then certainly the nonsuit which was ordered at nisi prius, ought to be set aside. The objection to the testimony of the plaintiff, interposed by defendant's counsel, was rightly overruled, and plaintiff was permitted to put in his " evidence relating to the false representation." What was it? Aside from the contract with Huntress, and the assignment by the defendants before spoken of, there is only the testimony of the plaintiff himself, which upon his examination in chief, in reply to his own counsel, consists of a somewhat bold, though repetitious statement, defective as to exact time and circumstances, that when Blunt gave him this writing, " he said the title to those wagons was good; " " that there were six wagons not released that I was to have a claim on; I don't recollect that he told me at that time into whose hands those six wagons had gone, or any portion of them; don't recollect that he said what they were worth; said that would be my only way to get my pay. I asked him if the bill of sale was good, and he said it was perfectly good. He says ‘ yes, just as good as it ever was.’ His lawyer spoke up and said, it is good for twenty years. Acting upon the strength of his representations, I paid him the money. I gave him a claim on my farm on a year's time. When the year was out, he deeded the farm away, and got the money on it himself. After paying him in this way, I found out where the wagons were. Bartlett had two; Atwood, one; Steward or Ripley, one; Trafton, one, and Davis, one. Mr. Blunt owned up that the claim against Davis wasn't good for anything before he transferred the bill of sale to me. I brought actions against Trafton, Bartlett, Steward and Atwood, not against Davis; calculate I was obliged to abandon them. They recovered costs against me. Don't know of anything else of importance that was said at that time that Mr. Blunt made this transfer to me, only that he told me the bill of sale was good, and that would be my only way to get my pay out of him."

If the case stopped here, it might fairly be said that the testimony, if not modified or controlled, would justify a jury in finding the concurrent intentional deceit, and damage accruing therefrom to a party acting with reasonable caution, which will suffice to maintain the action. See discussion of principles applicable in such cases, in Hammatt v. Emerson, 27 Me. 308.

These points established the case would fall within the familiar and incontrovertible principle of law, referred to by the court in Lobdell v. Baker, 1 Met. 201, " that where a party affirms either that which he knows to be false, or does not know to be true to another's loss and his own gain, he is responsible in damages for the injury occasioned by such falsehood." If the evidence suffices to establish those points, manifestly the defendant is not relieved from liability, because the conveyance which his fraud may have induced the plaintiff to accept, contains no warranty respecting the matter to which the alleged false representation relates, or may be a mere naked release of his interest with stipulations against further liability in the premises. See Nowlan v. Cain, 3 Allen 261.

The fact that the conveyance which the defendant in such an action has given contains no warranty, but on the contrary stipulations against liability on the part of the vendor, is not conclusive that he has made no false representations to induce his vendee to accept such a conveyance. The contents of the conveyance may furnish matter for the consideration, first,...