Comstock v. Livingston

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 97 N.E. 106,210 Mass. 581
• Parties: COMSTOCK v. LIVINGSTON.
• Decision Date: 04 January 1912

210 Mass. 581
97 N.E. 106

COMSTOCK
v.
LIVINGSTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 4, 1912.

Exceptions from Superior Court, Middlesex County; J. H. Hardy, Judge.

Action by Adeline R. Comstock, executrix, against William E. Livingston. Judgment for defendant, and plaintiff excepts. Exceptions sustained.

Wm. [210 Mass. 585]H. Bent, for plaintiff.

Trull & Wier, for defendant.

[210 Mass. 582]RUGG, C. J.

[1][2][3][4] I. This is an action of contract upon a promissory note. The answer pleaded a release under seal by the payee (the plaintiff's testatrix) to the maker (the defendant) and a general denial. Thereafter the plaintiff filed a long replication setting up various matters. The substance of it all was that the signature of the payee to the release had been procured by the fraud of the defendant, by an abuse of a relation of trust and confidence which existed between them, by weakness and feebleness of payee and her inability to withstand the maker's persuasion, and that the release was executed in reliance upon a promise by the defendant to pay the note upon the happening of an event in the future, which event has happened, and a demand and refusal, and also a further promise by the defendant to pay in return for a delay in asserting this obligation. The replication was stricken out by order of the court. It is sought to sustain exception to this action on the strength of R. L. c. 173, §§ 31 and 32, which allow a plaintiff to reply to a defense set up in the answer ‘any facts which would in equity avoid such defense, or which would entitle the plaintiff to be absolutely and unconditionally relieved in equity against such defense.’ This language means such a state of facts as in equity and not at law would entitle a party to relief. It has no application to a case where the facts alleged afford as full relief in the action at law and as they would in equity. No special equitable relief was asked for in the replication, and the facts stated therein do not appear to warrant the asking of any. So far as they relate to the cause of action set up in the declaration, they were as competent in favor of the plaintiff without a replication as with it. Twomey v. Linnehan, 161 Mass. 91-94, 36 N. E. 590;Corbett v. Craven, 196 Mass. 319,87 N. E. 37. So far as they refer to another cause of action they are not the proper subject-matter for a replication. Ordinarily, no further pleadings are required after the answer in an action at law except upon motion of the defendant, and the court did not exceed [210 Mass. 583]its power in ordering this replication

[97 N.E. 108]

stricken out. Lyon v. Manning, 133 Mass. 439.

[5] II. The plaintiff presented certain requests for rulings before the introduction of any evidence. They were refused rightly, for such practice is wholly irregular. Wood v. Skelley, 196 Mass. 114-118, 81 N. E. 872,124 Am. St. Rep. 516. The soundness and applicability of the requests need not be considered.

[6] III. The plaintiff offered to prove, in substance, that there were relations of trust and confidence between the maker and payee, and that the latter was weak and feeble and liable to be easily persuaded, and that with knowledge of these infirmities the defendant induced the signing of the release by promising her that when his sister, a Mrs. George, should die, whereby he would come into possession of a large property, he then would pay the note, at the time intending not to keep the promise. We construe the ruling of the superior court to mean that evidence respecting all these matters was competent, except that of the promise to pay the note out of such moneys as he might receive from Mrs. George and of his intent not to keep that promise. It is to be noted that the question here raised is whether the execution of the release, upon which defense to the action is based, was induced by the fraud or...