Cole v. Cassidy

• Decision Date: 13 January 1885
• Citation: 138 Mass. 437
• Parties: MilfordJ. Cole v. John E. Cassidy
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

138 Mass. 437

MilfordJ. Cole v. John E. Cassidy

Supreme Judicial Court of Massachusetts

January 13, 1885

Argued November 13, 1884.

Suffolk.

Exceptions overruled.

A. B Wentworth, for the plaintiff.

I. W Richardson & T. S. Dame, for the defendant.

Field, Devens, & Colburn, JJ., absent. Morton, C. J.

OPINION

Morton, C. J.

This is an action of tort for deceit. The declaration alleges that the defendant was a director of the Pacific National Bank; that he falsely and fraudulently represented of his own knowledge that the bank was sound; that the plaintiff was thereby induced to buy stock and make deposits in the bank; that the bank was not sound; and that the defendant, when he made the representations, knew them to be untrue. The case proceeded upon two grounds; one, that the defendant, to induce the plaintiff to act, stated facts which he knew to be untrue; the other, that he stated facts, as of his own knowledge, which were not true. To meet the first ground, the evidence put in by the defendant, against the objection of the plaintiff, was competent. It stated the relations of the defendant to the bank, and tended directly to show that he did not know that the bank was unsound, and thus to meet the allegation of the declaration that he knew his statements to be untrue.

The only other exception taken by the plaintiff was to the refusal of the court to give the instruction requested by him. He requested the court to instruct the jury, "that if they found the defendant's representation as to the soundness of the bank was made as a statement of existing fact, and as of his own knowledge, and if such representation was in fact untrue, it was not necessary for the plaintiff to prove that the defendant made the representation with intent to deceive, but that it was sufficient for him to show that the defendant made the representation with the intent to induce the plaintiff to rely and act upon it, and that the plaintiff did so act and rely." The court was not required to give the instructions in the precise words of the request. It instructed the jury, in substance, that the plaintiff could recover, if he proved that the defendant represented, as an existing fact, that the bank was sound, that the plaintiff was thereby induced to act, that in fact the bank was not sound, and that the defendant then knew that it was not sound, or that, the fact of the soundness of the bank being a fact...