Harvey v. Squire
| Decision Date | 18 May 1914 |
| Parties | HARVEY v. SQUIRE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Walter Harstone and Robert S. Harstone, both of Boston, for plaintiff.
G. L Mayberry and L. A. Mayberry, both of Boston, for defendants.
The plaintiff is the payee and the holder, while the defendants are the joint and several makers of the promissory notes in suit. It is not contended that the notes were not given for a valuable consideration, and none of the defenses raised by the original answer having been relied on at the trial, the production of the notes, and proof of the defendants' signatures, would have entitled the plaintiff to a verdict. Burnham v. Allen, 1 Gray, 496; Ballou v Wells, 12 Allen, 485; Perley v. Perley, 144 Mass. 104, 10 N.E. 726; R. L. c. 73, §§ 41, 77. But by the amended answer the defendants averred, that they were induced by the false and fraudulent representations and fraudulent concealments of the plaintiff upon which they relied, to execute the notes. It appears that the plaintiff, as manager, had been in the employment of a corporation, of which the defendant Fred F. Squire was treasurer, and the defendant Ida I. Squire, his wife, owned nearly all the capital stock, and the deceit and fraud is stated to have been that in violation of his contract, and without the knowledge of its officers, he entered into business relations with a rival company, to which from time to time he diverted a large part of its trade, causing serious financial loss to his employer and that there was not justly due to him from the corporation, because of services on his part, a sum equal to the amount of the notes, or any sum whatever. The burden of proving these averments rested on the defendants. Sayles v. Quinn, 196 Mass. 492, 495, 82 N.E. 713.
It is conceded that Ida I. Squire signed the notes on presentation by her husband, to whom reference hereafter will be made as the defendant, and she was not present at the interview between him and the plaintiff when the settlement of the indebtedness was made; neither is she shown to have known of what then took place, nor did she attend the trial. The relation of husband and wife is relied upon as sufficient to establish agency. It is urged that any misrepresentations made to the defendant were made to his principal, and Arnold v. Spurr, 130 Mass. 347, and Reid v. Miller, 205 Mass. 80, 90 N.E. 223, are cited. In the first case the husband had been intrusted with the management of his wife's farm, and in the second case the wife with knowledge that her husband was erecting a house on her land, made no objection. The defendant in the present case, although a witness and exhaustively examined, gave no evidence that with her knowledge and assent he acted generally in the management of her business affairs, from which the jury might have inferred that he represented her in the settlement, or that he had been instructed to act in her behalf. Kelley v. Lindsey, 7 Gray, 287; Gould v. Norfolk Lead Co., 9 Cush. 338, 57 Am. Dec. 50. By the provisions of the statute she could contract as if sole, and by her signature she is presumed to have become a party to the notes for value. R. L. c. 153, § 2; Id. c. 73, § 41. The bare marital relationship and nothing more was insufficient to warrant the inference of agency, and the plaintiff's first three requests should have been given. Barker v. MacKay, 175 Mass. 485, 488, 56 N.E. 614.
But if it were assumed that with the knowledge of the plaintiff he represented her as well as acted for himself, yet there was a mistrial. The substantial facts are undisputed. The defendant had given to the plaintiff from time to time in payment of arrears of salary due from the corporation his promissory notes. Partial payments were made and then a new note including the balance remaining on the previous note and salary subsequently accruing would be given, and on March 1, 1911, the defendant, after an accounting, gave his note for $2,000. The plaintiff at this time had not been unfaithful to his employer's interests. The following November another accounting was had, when the defendant himself computed and itemized the amount due which included $1,800, with interest remaining unpaid on the note of March 1st and $51 for 17 weeks, at $3 a week, covering current expenses, treated as salary, and four notes were then given for the aggregate sum of $1,922.96, of which the first two have been paid, leaving the notes in question amounting to $1,500 outstanding. No want of consideration appears, nor has partial failure of consideration been pleaded. See Robinson v. Greene, 3 Metc. 159, 161; Rand v. Mather, 11 Cush. 1, 7, 59 Am. Dec. 131. The defendant, even if the note given in March is not shown to have become due, instead of making payment. took up that note, which he has since retained without any tender back, and gave the notes of himself and wife in renewal. The false representation of the plaintiff made to the defendant some tiem in June, 1911, and prior to signing the notes, that he was not interested in the competing company, was considered by the presiding justice as sufficient to support the defendant's averments of fraud and of the right of rescission. But to enable a party to rescind the fraud or misrepresentation relied on must have in fact induced him to make the contract, and must be a part of the same transaction. Hedden v. Griffin, 136 Mass. 229, 231, 49 Am. Rep. 25; Dawe v. Morris, 149 Mass. 188, 21 N.E. 313, 4 L....
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