Cotter v. Nathan & Hurst Co.

• Decision Date: 17 June 1914
• Citation: 105 N.E. 888,218 Mass. 315
• Parties: COTTER v. NATHAN & HURST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 315

105 N.E. 888

COTTER v. NATHAN & HURST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914

COUNSEL

Charles

H. Sprague, of Boston, for plaintiff.

William H. Brown and Alexander S. Neal, both of Boston, for defendant.

OPINION

RUGG C.J.

This is an action of tort, in which the plaintiff seeks to recover from the defendant corporation damages for maliciously causing his arrest on mesne process. The plaintiff was arrested on a writ sued out by the defendant against him in an action of contract, on the ground that he was going to leave the state. The plaintiff was debtor to the defendant upon a contract of sale. There was testimony tending to show that the defendant had made every considerable effort to find the plaintiff, without success and that the defendant's president, receiving information that the plaintiff was at the Parker House, sent one Waitt to interview him. Waitt's general employment by the defendant was----

'to look after the outside accounts. That was his entire business. * * * He was an outside man and did some inside work, too.'

The report of Waitt to the defendant's president (as testified by the latter) was:

'I asked Mr. Cotter for the money and he said he couldn't pay it, and he said, 'I have got some mines down in Nova Scotia that I am going down to look after,' and he said that 'if you will wait I will send you the money.”

Thereupon the defendant's president sent Waitt to see its attorney and thereafter, acting on the advice of counsel, the president of the defendant signed and made oath to the affidavit of arrest before a master in chancery. The plaintiff denied that he made any statement to Waitt about going to Nova Scotia or anywhere out of the commonwealth, and testified that he simply said that he was at Young's Hotel. The plaintiff requested instructions to the jury (which were denied) in various forms, to the effect, in substance, that knowledge on the part of Waitt of the falsity of the report made by him to the defendant's president (if it was false) that Cotter was going to leave the state was imputable to the defendant, and that, if the defendant acted on advice of counsel in making the arrest and failed to disclose to him the true conversation between Waitt and Cotter, then advice of counsel was not a defense.

Under the circumstances of this case the substance of these requests should have been granted. Waitt was the agent of the defendant for the purpose of the interview with Cotter. He was sent for the express purpose of talking with him about the account and ascertaining the facts respecting it, on which action by the defendant might be based. On reporting this conversation to the defendant's president, he was sent by the latter to the counsel for the defendant for the purpose of making full disclosure of the substance of the conversation, in order that the counsel might...