Donovan v. Clifford

• Decision Date: 04 January 1917
• Citation: 114 N.E. 681,225 Mass. 435
• Parties: DONOVAN v. CLIFFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 435

114 N.E. 681

DONOVAN

v.CLIFFORD.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1917.

Report from Superior Court, Suffolk County; John H. Hardy, Judge.

Action by James J. Donovan against Mary G. Clifford. On report from the superior court. Judgment for plaintiff.

C. F. Smith, of Boston, for plaintiff.

DE COURCY, J.

The plaintiff, a dealer in millinery goods, made to the defendant, a milliner, the 19 sales referred to in the declaration; beginning August 24, 1914, ending October 6, 1914, and aggregating $207.82. There was evidence from which the jury could find the following facts: When the defendant moved to Boylston street about September, 1913, she was $7,000 in debt, and her business was greatly impaired during the year following; from August 1, 1914, to October 14, 1914, her indebtedness steadily increased and her stock diminished; about the 1st of September she had an attorney send a general form letter to her creditors offering to pay them with notes, but no cash; the middle of September her books showed an indebtedness of about $15,000, and she made an offer to her creditors of 25 per cent. in her unsecured notes; while this effort to compromise with her creditors was in progress she formed a corporation, known as Clifford, Incorporated, with three dummy incorporators, intending thereby to cater to her customers; a petition in involuntary bankruptcy was filed against her November 13, 1914, and her schedules in the bankruptcy court showed a total indebtedness of $20,526.86, and assets totaling $4,200, consisting of fixtures $500, book accounts $700, and stock $3,000. The schedules contained a statement of ‘$500 in merchandise paid to’ her attorney, which in fact was not paid. Until the plaintiff received a letter from her attorney October 9, 1914, he did not learn in any way that the defendant was unable to pay her debts.

[1] A jury would be warranted in inferring, from the conduct of the defendant as disclosed by the evidence, that she bought these goods with a preconceived, definite, conscious intent not to pay for them. Under our law this would constitute a fraud upon the plaintiff, would render the sales voidable at his election, and entitle him to recover the goods in an action of replevin if they remained hers. Watson v. Silsby, 166 Mass. 57, 43 N. E. 1117;Phinney v. Friedman, 224 Mass. 531, 113 N. E. 285.

The plaintiff, however, has not attempted to avoid the sales. This action is in tort for deceit. The declaration is based on alleged false and fraudulent representations by ...