Brown v. C.A. Pierce & Co.

• Decision Date: 02 January 1918
• Citation: 118 N.E. 266,229 Mass. 44
• Parties: BROWN v. C. A. PIERCE & CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 44

118 N.E. 266

BROWN

v.C. A. PIERCE & CO., Inc.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 2, 1918.

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Action by Frederick W. Brown against C. A. Pierce & Co., Incorporated. There was verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment ordered entered for defendant.

J. W. Pickering, of Boston, for plaintiff.

Frank M. Forbush and Hiram E. Tuttle, both of Boston, for defendant.

PIERCE, J.

This is an action of contract or tort. The declaration is in three counts; the first count alleges that the defendant through its agent, one Barry, made certain false representations which were intended to induce and did in fact lead the plaintiff to expend money in the purchase of subscriptions to a paper published by the defendant under the terms of a ‘voting contest’; the second count alleges that the defendant through its officers and agents conspired with sundry persons to cheat and defraud the plaintiff by means of the false representations set out in the first count and incorporated in the second count by reference thereto; the third count is an action for money had and received to the plaintiff's use. Counts 1 and 2 are alleged to be for the same cause of action, and count 3 ‘for a part of the same cause of action.’

At the trial there was no evidence to warrant the allegations of the second count to the effect that the defendant, by its officers and agents, wrongfully conspired with sundry persons to cheat and defraud the plaintiff by means of the same representations set out in the first count. The second count may therefore be disregarded, and we proceed to a consideration of the testimony introduced in proof of the allegations contained in the first and third counts.

The evidence was sufficient to establish the agency of both Monger and Barry, should the jury believe that the ‘Memorandum of Agreement’ was not intended to express the real agreement between the parties, but was to be a cloak or shield to protect the defendant from actions that might arise from the wrongful conduct of its agents and servants. The jury expressly found Barry was the agent of the defendant, and it could have been found upon the testimony that Barry, to induce the plaintiff to put his money into the ‘voting contest’ stated to the plaintiff and to the wife of the plaintiff in the presence of the plaintiff, ‘that the contestants were losing interest in it and it was going to be a failure’; that ‘they had bought all these prizes and couldn't afford to give them away’; ‘that somebody had got to put some money into it so they could get out of it’; ‘that anybody would be a fool if they had a...