Ginn v. Almy
| Decision Date | 01 July 1912 |
| Citation | 99 N.E. 276,212 Mass. 486 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | GINN v. ALMY et al. SAME v. ARGENTA MINES CO. et al. SAME v. WOOD et al. |
OPINION TEXT STARTS HERE
Case Reserved from Supreme Judicial Court, Suffolk County.
Bills by Edwin Ginn against William P. Almy and others against the Argenta Mines Company and others, and against Frank S. Wood and others. Hearing by single justice on master's report and case reserved for the full court upon all the pleadings. Decree for plaintiff on the first bill dismissing it as to certain defendants, and other bills dismissed.
George W. Anderson and Edwd. H. Ruby, both of Boston, for plaintiff.
Frank H. Stewart and Waldron H. Rand, Jr., both of Boston, for defendants Almy.
The first bill of complaint as finally amended appears to have been treated by the parties as stating substantially all the grounds upon which the plaintiff relied for equitable relief, and the remaining suits in which neither William F. Almy nor his wife, Lillian W. Almy, are defendants seem to have been instituted merely as matter of precaution. We shall follow the order adopted by them, and confine our discussion of the questions raised by the record as being covered by the pleadings in the first case. The bill having been taken for confessed against the defendants, the Alcimento Mines Company, and the Alveoro Mines Company, the remaining defendants, William F. Almy, Lillian W. Almy, Frank S. Wood, George R. Angus and the Argenta Mines Company demurred to the original bill, which although brought in the name of one Edward K. Robinson to whom the causes of action had been assigned, was amended after the demurrers were filed, by the substitution of the present plaintiff, Edwin Ginn, who was the assignor. By this amendment the second and third grounds, which are common to all the demurrers, were eliminated, leaving for decision the other causes assigned.
[1] The defendants Wood, Angus, and the Argenta Mines Company neither appeared at the argument, nor filed a brief, yet if the demurrer of William F. Almy is sustained they are entitled to the benefit of the decision in so far as they relied on similar objections to the sufficiency of the bill. It is broadly contended, that no case is stated for relief in equity, and that the plaintiff's remedy at law is plain and adequate.
[2] The second paragraph of the bill alleges, that ‘in all the transactions and frauds hereinafter referred to the said Wood and Angus have acted in concert and conspiracy with the said Almy, and these three have divided the proceeds of the moneys hereinafter complained of according to agreements made among themselves.’ It will be convenient in disposing of the demurrers to refer to them as the defendants, for the plaintiff constantly avers, that through their instrumentality he had been wronged and defrauded. The allegations of the third, fourth, fifth, sixth and seventh paragraphs when relieved of redundancy charge the defendants, who were officers of the corporation, with making various material, false and fraudulent representations concerning the value of the property, and of the shares of the capital stock of the Argenta Mines Company for the purpose of inducing the plaintiff to buy, and that in reliance upon these representations he invested large sums of money in the purchase through the defendants of the stock of a mining enterprise having no intrinsic or commercial value. The eighth, ninth and tenth paragraphs relate to the acquisition by the defendants and the plaintiff of certain gold placer mining properties described as the Alcimento Mines Company and the Alveoro Mines Company. It is charged, that through the false representations of the defendants the ownership and control of these properties could be acquired upon payment of a stipulated sum in money, and one-fifth of the capital stock of a corporation to be organized to purchase the Alcimento mine, and two-fifths of the capital stock of the corporation which was to be formed to take over the Alveoro mine, the plaintiff, believing the representations to be true, paid to the defendants amounts largely in excess of the purchase price for which they had bought either property, and became an owner of a large part of the capital stock. In consummation of this fraudulent scheme it is further charged, that the defendants in each of these transactions appropriated to their own use a large portion of the money received from the plaintiff exclusively for the purpose of effecting the purchase. It would seem to be alleged with sufficient certainty that by a series of misrepresentations the defendants acting jointly obtained from the plaintiff large sums of money for worthless stock, and for investment in mining properties, which they appropriated in part for their own enrichment. The representations on which the plaintiff relied are shown by the averments to have been peculiarly within the knowledge of the defendants, and the pecuniary damage which he has suffered is aptly alleged to have been induced by their fraud.
[3] It is no doubt true, as the defendants urge, that the plaintiff upon discovery of the deceit could have affirmed the contracts, and sued in tort for damages. Stewart v. Joyce, 201 Mass. 300, 310, 311, 87 N. E. 613, and cases cited.
[4] But he offers to return the stock, and by reason of the fraud practiced upon him he may resort to equity to have all the transactions set aside, and if rescission is granted full relief for a return of the money wrongfully obtained can be decreed. Smith v. Everett, 126 Mass. 304;Davis v. Peabody, 170 Mass. 397, 49 N. E. 750;Rackemann v. Riverbank Improvement Co., 167 Mass. 1, 44 N. E. 990,57 Am. St. Rep. 427;Long v. Athol, 196 Mass. 497, 82 N. E. 665,17 L. R. A. (N. S.) 96;Stewart v. Joyce, 201 Mass. 301, 87 N. E. 613;Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798.
[5] The plaintiff if he fails to obtain relief in one form is not barred from such relief as may be applicable to the case stated by the bill. Gerrish v. Towne, 3 Gray, 82, 86, 87;Nudd v. Powers, 136 Mass. 273;Colton v. Ross, 2 Paige (N. Y.) 396, 22 Am. Dec. 648;Shields v. Barrow, 17 How. 130, 15 L. Ed. 158.
[6] The prayers, however, which ask that, if the plaintiff cannot rescind, the defendants may be decreed to have acted in a fiduciary capacity, and that an accounting be ordered of all sums appropriated by them to their own use, or that his damages may be assessed, and execution therefor awarded, are doubtless inconsistent. The defendants are not trustees or agents holding property for his benefit for which they should account, and relief in damages if rescission fails is based on affirmance, and not upon disaffirmance of the contracts. Price v. Minot, 107 Mass. 49;Dunphy v. Traveler's Newspaper Ass'n, 146 Mass. 495, 16 N. E. 426. But the bill is not rendered multifarious even if it contains inconsistent alternative prayers, and transactions separate in point of time have been joined, or demands exclusively remediable at law, and over which a court of equity has no independent jurisdiction have been inserted. Ames v. King, 9 Allen, 258;McCabe v. Bellows, 1 Allen, 269; Mayne v. Griswold, 3 Sandf. (N. Y.) 463; Miller v. Jamison, 24 N. J. Eq. 41;Gammel v. Young, 3 Iowa, 297.
[7] We have said that the purchases of Argenta stock, and of an interest in the Alcimento and Alveoro properties are but parts of what is alleged to have been a concerted attempt to defraud, and, if the money thus obtained varies in amount according to the particular transaction, the plaintiff asks for the enforcement of a general right of rescission and recovery, where from the mercantile association of the parties the fraudulent acts are alleged to have been so connected that the defendants in making their defense are not burdened by the joinder, or the court prevented from decreeing appropriate relief. Bliss v. Parks, 175 Mass. 539, 543, 56 N. E. 566;Von Arnim v. American Tube Works, 188 Mass. 515, 520, 74 N. E. 680;Andrews v. Tuttle-Smith Co., 191 Mass. 461, 466, 467, 78 N. E. 99.
[8] The bill also seeks under Rev. Laws, c. 159, § 3, cl. 7, to reach and apply in satisfaction of the plaintiff's demands property in the possession of the defendant Lillian W. Almy alleged to belong to her husband, and the corporate defendants are also joined under averments that Wood, Almy and Angus possess large holdings of stock in these companies, which cannot be reached on attachment or execution at law. The demurrants construe the frame of the bill as not setting forth a debt within the purview of the statute. But in the construction of a similar provision in the Gen. Sts. c. 113, § 2, Chief Justice Gray said in Schlesinger v. Sherman, 127 Mass. 206, 208: ‘The equitable jurisdiction conferred by this statute, and invoked in the bill, does not depend upon the nature of the plaintiff's debt, or cause of action, but upon the existence of some property or right which cannot be come at to be attached or taken on execution at law as security for, and in satisfaction of the plaintiff's debt against the defendant.’ The amounts involved become upon rescission liquidated claims founded upon an obligation of repayment by which the defendants are bound, and for which payment can be exacted by the plaintiff. This is sufficient to satisfy the requirements of the statute. Woodbury v. Sparrell Print Co., 187 Mass. 426, 428, 429, 73 N. E. 547.
[9] It is unnecessary to refer specifically to objections which have not been argued, or mentioned in the briefs, and, having examined all the causes assigned, we find no error in the decree of the single justice who ordered the demurrers overruled.
[10] Upon the coming in of the answers, issue was joined, and all the defendants moved that issues of fact be framed for trial to a jury. The denial of these motions, while reviewable by the full court, was discretionary with the single justice, whose decision should not be reversed. It is not alleged in the eleventh...
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