Farquhar v. Farquhar

• Decision Date: 28 February 1907
• Parties: FARQUHAR v. FARQUHAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 400

80 N.E. 654

FARQUHAR v. FARQUHAR.

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1907

COUNSEL

Lewis Kennedy Morse and George L. Mayberry, for plaintiff.

Samuel C. Darling and Charles W. Bartlett, for defendant.

OPINION

LORING J.

Prior to June 26, 1896, James Farquhar, the plaintiff, Robert Farquhar, the defendant, and their brother John were partners in the business of seedsmen. On that day James and John sold to Robert their interest in the business, not including the good will, on the basis of the whole business being worth $45,000. James and John immediately took measures to open a competing seed store. Between August 3, 1896, and August 7, 1896, negotiations were carried on between James and Robert (John being then in Europe) for the sale by Robert of his business to James and John, or to James alone. James testified and the auditor found that on August 5 James agreed to buy and Robert agreed to sell the business on the basis of the sale of June 26th (exclusive of cash and good will) and that the amount due on that basis was to be ascertained by a clerk employed by Robert by the name of Nilsson. On August 7th Robert presented several papers showing the amount due to be about $30,000, and the written agreement of August 7 1896, was written out and signed. Robert testified that he never agreed to sell on the basis of the sale of June 26th the necessary changes by reason of subsequent transactions being computed by Nilsson; that he drew off the figures presented as an estimate, which were referred to more or less in the negotiations, and finally a trade was struck for $30,000, and the agreement of August 7 was written out and signed.

Some three years afterwards the plaintiff discovered that the figures had not been made by Nilsson, and that there were mistakes which the auditor found amounted to $7,506.32. He thereupon brought this action.

The declaration contains three counts.

In the first the plaintiff counts on a false and fraudulent representation, to wit, that the statement was made by Nilsson and that it was an accurate statement of the defendant's doings in the business after June 26th, by which representation he was induced to pay the defendant $30,000 for the business.

In the second he counts on the same false and fraudulent representation, and here alleges that he was thereby induced to enter into the written contract of August 7, 1896.

The third count is a count for $8,751.90, money had and received to the plaintiff's use. The bill of particulars annexed to the third count contains 145 items, and is a statement made up on the basis on which the auditor found that the defendant agreed to sell and the plaintiff to buy on August 5, 1896.

A demurrer to the third count was filed by the defendant and overruled. To this the defendant excepted.

At the trial the defendant asked the presiding judge to rule as to the third count 'that in considering any liability of the defendant under the same, the only contract between the parties was that in writing dated August 7, 1896, the counsel for the defendant stating to the court that the ground for such request was that in the absence of fraud, all the preceding oral negotiations and statements as to the terms of the contract, made by the parties thereto must be taken to have been merged in the instrument of August 7, 1896.'

This was refused by the presiding judge, and the defendant excepted. The judge instructed the jury in substance that if the agreement was an agreement to sell on a computation to be made by Nilsson and there was an error in the computation, the plaintiff could recover under the third count the amount of that error. But if the agreement made by and between the plaintiff and the defendant was an agreement to sell for $30,000 arrived at not by computation under a preceding agreement but as the result of trading and dickering the plaintiff could not recover, even if $30,000 was more than the assets were worth. To this charge so far as it was inconsistent with the ruling requested the defendant excepted.

The presiding judge in the course of his charge told the jury that 'if you find that the plaintiff has not made out his case on the first and second counts, you will reach this third count, which we have just been considering, and if you find that the plaintiff prevails, if your conclusion is that the case is made out upon the first and second counts, you do not have to consider the third count; but if the plaintiff fails in the first and second counts, the misrepresentation counts, then you come to consider the third count. If he established his case, in your judgment, on the basis that I have laid down as essential, then you find for the plaintiff for the amount of the mistake, if computation was the basis, and you specify in your verdict that it is on the third count, and if we find that you report your verdict on the third count, by your silence on the other counts, we shall infer that your verdict is favorable to the defendant on the first and second counts.'

The jury returned a verdict for $7,506.32 on the third count, with interest from December 22, 1900.

1. The demurrer was rightly overruled. The defendant's argument in support of his demurrer is that the contract of August 7 was an entirety; that it has not been rescinded, and that the third count is an effort to recover back one or more of the items which went to make up this $30,000. The basis for this...