Gurney v. Tenney

• Decision Date: 29 February 1908
• Citation: 197 Mass. 457,84 N.E. 428
• Parties: GURNEY v. TENNEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 457

84 N.E. 428

GURNEY v. TENNEY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

February 29, 1908

The requested rulings referred to in the opinion were as follows:

'(1) Upon all the evidence, the plaintiff cannot recover against the defendant John A. Tenney.

'(2) If the defendant Tenney ever represented to the plaintiff that the lamp was a very valuable invention as it would effect the saving of 33 1/3 per cent. of electricity in giving the same light that any lamp then in use would give that he considered it to be a very valuable invention and so much so that he had invested $2,000 of his own money in the preferred stock of the Continental Electric Company that the defendant Robinson had invested a large amount of money in said company, and that the defendant Conant had invested $2,000 in the preferred stock of said company, that said Robinson was a wealthy man, also a man of the highest integrity and was not obliged to carry on any business in order to make a living, that he had an income without, that all money thereafter paid in was to be used for the sole purpose of building a factory and manufacturing and putting upon the market said patent lamps, all of said representations were either immaterial, 'dealer's talk' or expressions of opinion and are not actionable.

'(3) There is no evidence of a conspiracy to which the defendant Tenney was a party.

'(4) If an act done by one alone does not constitute a cause of action, a like act is not rendered actionable by being done in pursuance of a conspiracy.'

'(6) If the defendants or either of them ever represented to the plaintiff that the defendant Conant could give the plaintiff a true reading and could tell her past and what she should do in the future in business and other ways which would add to her comfort and fortune in a financial way, that the defendant Conant and the defendant Tenney were stockholders in the Continental Electric Company and had each invested $2,000 of their own money in the preferred stock of the same, that the defendant Robinson was a man of strict and of the highest integrity, that he was very wealthy, had plenty of money, was a wealthy man, that he was not obliged to carry on any business, that he possessed enough property to live on the income, that his business as treasurer and manager of the company was only a pastime, that he put in his money merely as an investment and that he had invested a large amount of money in the company, that the lamp was a valuable invention, as it would effect a saving of 33 1/3 per cent. of electricity in giving the same light that any lamp then in use would give, and that all money thereafter to be paid in was to be used for the sole purpose of building a factory and manufacturing and putting upon the market said patent lamps, all of said representations were either immaterial, 'dealer's talk,' or expressions of opinion and not actionable.'

In addition to facts which appear in the printed papers, the concluding paragraph of the declaration, which is referred to in the opinion, alleged that the statements made regarding the business of the Continental Electric Company, the purchase of land, the great saving of electricity, etc., were false and fraudulent 'and then known by defendants to be false and fraudulent, and were made by the defendants upon an understanding between themselves as a conspiracy for the sole purpose of deceiving the plaintiff, and she was deceived thereby, and thereby defrauding the plaintiff out of her money for their mutual benefit by the purchase of said stock. For which the plaintiff brings this action against the defendants as conspirators to recover her said money back.'

COUNSEL

G. A. A. Pevey, Frederick W. Dallinger, and Walter Shuebruk, for plaintiff.

Walter H. Thorpe, for defendant Tenney.

OPINION

BRALEY J.

The allegations of conspiracy in the closing paragraph of the declaration are not the gist of the action, as the right to recover rests upon the damages wrongfully inflicted upon the plaintiff by the tortious acts of the defendants. Parker v. Huntington, 2 Gray, 124. While it does not appear that the representations of one defendant more than those of another influenced the plaintiff, yet the case is before us on the exceptions of Tenney alone, and if the representations made by him were...