Emmons v. Alvord

• Decision Date: 04 January 1901
• Parties: EMMONS v. ALVORD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 466

59 N.E. 126

EMMONS v. ALVORD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1901

COUNSEL

W. H. H. Emmons, for plaintiff.

Hayes & Williams, for defendants Alvord.

John F Simmons, for defendant Isenbeck.

Walter B. Grant, for defendant Hovey.

OPINION

HOLMES C.J.

This is an action of tort for a conspiracy to defraud the plaintiff in a sale and exchange of land between the plaintiff and one Merriman. The defendants were one Hovey, the plaintiff's broker; Alfred E. and Ralph F. Alvord, brothers, who purported to act for Merriman; one Isenbeck, who had had some relations to Merriman's land, and who stood behind the dealings between Hovey and the Alvords, and seems to have got the greater part of the illicit profits; Simonds Isenbeck's tool, who received a conveyance from Merriman of land that the plaintiff says should have come to him; and Henderson, another disguise of Isenbeck's, to whom Simonds conveyed the same land. Since the trial the plaintiff has discontinued as against Simonds and Henderson, so that the verdict now stands against the brokers and Isenbeck. These defendants demurred to the declaration, and the first question arises on their appeal from an order overruling their demurrers. We are of opinion that the order was right. The substance of the declaration is as follows: The plaintiff had some land in East Boston, which he wished to sell, and Merriman was ready to give for it, and understood that he was to give for it, $3,000 cash, two lots of land on Middlesex road, in Brookline, a lot in Braintree, and three lots on Circuit road, in Brookline. As the result of a conspiracy between the defendants, the plaintiff's broker, Hovey represented to the plaintiff that Merriman's best offer was as above, omitting the three lots on Circuit road, and the plaintiff, relying on Hovey's honesty, accepted it. The plaintiff's land was subject to a mortgage held by a bank, and one term of the bargain was that the mortgage should be extended. Neither the plaintiff nor Merriman cared to sign the agreement for extension, and the defendant Simonds was suggested as a person to do it, taking a conveyance from the plaintiff for the purposes, and then conveying to Merriman. He was not supposed by the plaintiff or Merriman to have any interest in the transaction, or to represent any one else, but in fact was acting under the orders of Isenbeck, who was a party to the whole scheme. In pursuance of the defendants' plan, the Alvords told their principal, Merriman, that, to carry out the bargain, he also should convey to Simonds, as a conduit, what he understood that he was to give the plaintiff; and Merriman did so. As the last step, Simonds conveyed the plaintiff's property to Merriman, and so much of Merriman's property as the plaintiff understood that he was to receive to the plaintiff, but conveyed the Circuit road lots to Henderson for the benefit of the conspiracy. Neither the plaintiff nor Merriman found out the truth until the conveyances had been made.

One or two minute verbal criticisms are made upon the declaration, as to which it is enough to say that, if it is desired to waste time on such trifles, attention must be called to them specifically in the demurrer. Steffe v. Railroad Co., 156 Mass. 262, 30 N.E. 1137. The chief one is that the allegation that, 'relying upon the good faith and honesty of his agent and broker, the defendant Hovey, the plaintiff was induced to accept said supposed offer,' etc., is not a sufficient allegation that the plaintiff relied upon Hovey's false and fraudulent statement of Merriman's highest offer, which is recited and alleged to have deceived the plaintiff in the two preceding sentences of the declaration. The whole frame of the plaintiff's declaration is directed as plainly as possible to the one purpose of alleging this fraud, and its success. Windram v. French, 151 Mass. 547, 552, 24 N.E. 914, 8 L. R. A. 750. In Colt v. Learned, 118 Mass. 380, the declaration showed on its face that it could not be sustained on general demurrer, and that objection was held open after what was equivalent to joinder in demurrer, although the particulars of the defect were not set forth as required by statute. But there is no suggestion that joinder in a general demurrer opens to the defendant objections of form when the meaning and intent of the declaration are plain. The contrary is settled by the above and other cases.

The substance of the demurrer, so far as serious, is that the plaintiff received all that ever was promised to him, and that he does not allege an actionable tort. But the answer to this is not hard to find. For a broker employed to sell land to understate to his principal an offer which he has received, with intent to appropriate, or to help some one else to appropriate, the difference between the amount as he states it and the amount actually offered, is an actionable wrong, if the fraud succeeds, for which substantial damages can be recovered in case they can be proved. The action is not brought to follow a fund to which the plaintiff has a claim into the defendant's hands, but is brought without regard to where the fund may be, for the agent's fraudulent act. It is true that, but for the contract of agency, the concealment and misrepresentation might not be a tort. But there are other cases in which a tort is said to spring out of a contract. In the old law a breach of warranty was a deceit, although innocent. Norton v. Doherty, 3 Gray, 372, 373. A carrier is liable in tort by reason of the bailment and his calling. Hutch. Carr. (2d Ed.) §§ 738-740. Whether an act is tortious or not always depends upon the circumstances, of course, and it hardly needs remark that the circumstance of confidential relations should give wrongful character to an act that in a different situation--for instance, that of buyer--would be untouched by the law. See City of Boston v. Simmons, 150 Mass. 461, 23 N.E. 210; Russel v. Palmer, 2 Wils. 325; Marzetti v. Williams, 1 Barn. & Adol. 415, 424; Bank v. Simons, 133 Mass. 315 (tort or contract).

If the act of the agent was a tort, those who conspired with him and helped him to commit it are jointly liable, and it is not necessary to consider whether the law would have been different had the object been merely to procure a breach of contract. City of Boston v. Simmons, 150 Mass. 461, 465, 23 N.E. 210; Livermore v. Herschell, 3 Pick. 33. See walker v. Cronin, 107 Mass. 555.

The question whether the plaintiff shows substantial damages may as well be considered in connection with the demurrer as elsewhere. He is entitled to recover for the injury which he has sustained (City of Boston v. Simmons, 150 Mass 461, 466, 23 N.E. 210); and it remains to be decided whether the injury alleged and proved, namely, the failure to receive the Circuit road lots, is...