Comstock v. Livingston

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

210 Mass. 581

97 N.E. 106

COMSTOCK v. LIVINGSTON.

Supreme Judicial Court of Massachusetts, Middlesex.

January 4, 1912

Jan. 4 1912.

COUNSEL

Wm.

H Bent, for plaintiff.

Trull & Wier, for defendant.

OPINION

RUGG, C.J.

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 its power in ordering this replication stricken out. Lyon v. Manning, 133 Mass. 439.

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.

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 misrepresentation of the defendant. It is not an action for deceit. See Derry v. Peek, 14 App. Cases, 337, 360; Nash v. Minnesota Title Ins Trust Co., 163 Mass. 574, 40 N.E. 1039, 28 L. R. A. 753, 47 Am. St. Rep. 489. The defendant is liable upon the note unless he is relieved by the release. The question upon this branch of the case is whether the evidence proffered and excluded was sufficient to warrant a finding that the execution of the release was procured by the misrepresentation or fraud of the defendant. In several cases it has been said that a representation of the existence of a present intent to do an act in the future, when such intent does not exist and the maker of the representation knows it does not exist, is a misrepresentation of a material fact. This question was not decided in Com. v. Althause, 207 Mass. 32, 47, 48, 93 N.E. 202, 31 L. R. A. (N. S.) 999, for that was an indictment where the procurement of property by false pretenses was involved. But the authorities...