Feldman v. Witmark
| Decision Date | 22 January 1926 |
| Citation | 254 Mass. 480,150 N.E. 329 |
| Parties | FELDMAN v. WITMARK et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Marcus Morton, Judge.
Action of contract or tort by Al Feldman against Julius P. Witmark and others, to recover for defendants' alleged breach of contract to publish and market a song and for inducing plaintiff to execute such contract. Demurrer to declaration was sustained, and case reported. Reversed.
Edward M. Dangel and M. M. Robinson, both of Boston, for plaintiff.
L. M. Friedman, J. J. Matthews, and Friedman, Atherton, King & Turner, all of Boston, for defendants.
[1][2] It is alleged in the second count of the plaintiff's declaration that ‘the defendant with fraudulent intent and to induce the plaintiff, falsely and fraudulently represented to the plaintiff that he would and intended to print, publish, advertise and market a certain song, that the plaintiff has a copyright on, and pay the plaintiff large sums of money as royalties on said song; that as the result of said false and fraudulent representations the plaintiff relying upon them, transferred and released his rights to said song, copyright and property connected therewith to the defendant; that the defendant did not intend to print, publish, advertise or market said song,’ with further allegations as to the real purpose of the defendants and consequent damage to the plaintiff. A cause of action in deceit is set out. The false statement alleged is that the defendant intended to print, publish, advertise and market, while in fact, at the time, he had no such intention. Present intention as to a future act is a fact. It is susceptible of proof. When such intention does not exist, and the maker of the representation knows it does not exist, it is a misrepresentation of a material fact. Commonwealth v. Walker, 108 Mass. 309, 312;Commonwealth v. Althause, 207 Mass. 32, 47, 93 N. E. 202,31 L. R. A. (N. S.) 999;Comstock v. Livingston, 210 Mass. 581, 583, 97 N. E. 106;Donovan v. Clifford, 225 Mass. 435, 437, 114 N. E. 681;Ciarlo v. Ciarlo, 244 Mass. 453, 456, 139 N. E. 344; Edgington v. Fitzmaurice, 29 Ch. D. 459; Swift v. Rounds, 19 R. I. 527, 35 A. 45,33 L. R. A. 561, 61 Am. St. Rep. 791.
[3] The false statements as to the purpose to print and market a copyrighted song and to pay royalties on sales well might be found to be a material inducement to the sale or transfer of such song. The alleged false statements, if found to have been made, are sufficiently alleged to have been material and are categorically alleged to have been relied upon by the plaintiff; they, therefore, entered into the substance of the contract. The statement of fact as to present intention of the defendant, being susceptible of actual knowledge and being a fact alleged to have been false, may be made the foundation of an action for deceit. Litchfield v. Hutchinson, 117 Mass. 195;Weeks v. Currier, 172 Mass. 53, 55, 51 N. E. 416;Bates v. Cashman, 230 Mass. 167, 168, 119 N. E. 663.
While possible the declaration may have been abbreviated and clarified somewhat,...
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