Deming v. Darling
| Citation | 20 N.E. 107,148 Mass. 504 |
| Parties | DEMING v. DARLING. |
| Decision Date | 28 February 1889 |
| Court | United States State Supreme Judicial Court of Massachusetts |
DEMING
v.
DARLING.
Supreme Judicial Court of Massachusetts, Middlesex.
February 28, 1889.
Exceptions from superior court, Middlesex county; LINCOLN F. BRIGHAM, Chief Justice.
Action by Vesta A. Deming against David H. Darling, for fraudulent representations, whereby plaintiff's agent, Dr. Charles Jordan, was induced to purchase a certain railroad bond. Verdict for plaintiff, and defendant excepts.
[148 Mass. 506]
[20 N.E. 108]
Lund & Welch and W.C. Jordan, for plaintiff.
S.K. Hamilton, for defendant.
[148 Mass. 504]HOLMES, J.
This is an action for fraudulent representations, alleged to have been made to the plaintiff's agent for the purpose of inducing the plaintiff to purchase a railroad bond from the defendant. It appears that the bond was purchased from the defendant's firm, and not from the defendant alone, but we shall not consider very carefully whether this constituted a variance, since, if it did, an amendment would be allowed at any time. If the contract had been sued upon, instead of being a collateral matter, non-joinder would have had to be pleaded in abatement, and there seems to be no obvious reason for greater strictness in this case. Wilson v. Nevers, 20 Pick. 20, 22;Tuttle v. Cooper, 10 Pick. 281, 283.
Among the representations relied on, one was that the railroad mortgaged was good security for the bonds, and another was that the bond was of the very best [148 Mass. 505]and safest, and was an “A No. 1” bond. With regard to these and the like, the defendant asked the court to instruct the jury “that no representations which the defendant might have made or did make to Dr. Jordan, in relation to the value of the bond in question, or of the railroad, its terminals, or other property which were mortgaged to secure it, with other bonds, even though false, were representations upon which Dr. Jordan ought to have relied, and are not sufficient to furnish any grounds for this action;” and also “that each of the expressions, ‘and that the same [meaning said rail, and all the property covered by the mortgage] was good security for said bonds,’ ‘that said bond was of the very best and safest, and was an “A No. 1 bond,” ’ are expressions of opinion of value, and even though false are not such representations as Dr. Jordan had a right to rely upon, and are not enough to furnish any grounds for this action.''
The court declined to give these instructions, and instead instructed the jury that “an expression of opinion, judgment, or...
To continue reading
Request your trial