Hunnewell v. Duxbury

• Decision Date: 02 September 1891
• Citation: 154 Mass. 286,28 N.E. 267
• Parties: HUNNEWELL v. DUXBURY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 286

28 N.E. 267

HUNNEWELL

v.DUXBURY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 2, 1891.

Exceptions from superior court, Suffolk county; ROBERT C. PITMAN, Judge.

Action by Elias R. Hunnewell against J.W. Duxbury and others for damages for false representations. Judgment for plaintiff, and defendants bring exceptions. Exceptions sustained.

F. McIntire, for plaintiff.

W.F. & W.S. Slocum, for defendants.

BARKER, J.

The action is tort for deceit in inducing the plaintiff to take notes of a corporation by false and fraudulent representations, alleged to have been made to him by the defendants, that the capital stock of the corporation, amounting to $150,000, had been paid in, and that patents for electrical advertising devices of the value of $149,650 had been transferred to it. From the exceptions it appears that the corporation was organized in January, 1885, under the laws of Maine, and engaged in business in Massachusetts; that it filed with the commissioner of corporations a certificate dated August 11, 1885, required by St.1884, c. 330, § 3,¹ signed by the defendants, with a jurat stating that on that date they had severally made oath that the certificate was true to the best of their knowledge and belief; that before the plaintiff took the notes the contents of this certificate had been communicated to him by an attorney whom he had employed to examine the records, and that he relied upon its statements in accepting the notes. There was no other evidence of the making of the alleged representations. The main question is whether the plaintiff can maintain an action of deceit for alleged misstatements contained in the certificate. In the opinion of a majority of the court this question should have been decided adversely to the plaintiff. The execution by the defendants of the certificate to enable the corporation to file it under St.1884, c. 330, § 3, was too remote from any design to influence the action of the plaintiff to make it the foundation of an action of deceit. To sustain such an action misrepresentations must either have been made to the plaintiff individually, or as one of the public, or as one of a class to whom they are in fact addressed, or have been intended to influence his conduct in the particular of which he complains. This certificate was not communicated by the defendants or the corporation to the public or the plaintiff. It was filed with a state official for the definite purpose of complying with a requirement imposed as a condition precedent to the right of the corporation to act in Massachusetts. Its design was not to procure credit among merchants, but to secure the right to transact business in the state. The terms of the statute carry no implication of such a liability. Statutes requiring similar statements from domestic corporations have been in force here since 1829, and whenever it was intended to impose a liability for false statements contained in them there has been an express provision to that effect; and a requisite of the liability has uniformly been that the person to be held signed knowing the statement to be false. St.1829, § 90; Rev.St. c. 38, § 28; Gen.St. c. 60, § 30; St.1870, c. 224, § 38, cl. 5; Pub.St. c. 106, § 60, cl. 5. To hold that St.1884, c. 330, § 3, imposes upon those officers of a foreign corporation who sign the certificate, which is a condition of its admission, the added liability of an action of deceit, is to read into the statute what it does not contain. If such an action lies, it might have been brought in many instances upon representations made in returns required of domestic corporations, and yet there is no instance of such an action in our reports. In Fogg v. Pew, 10 Gray, 409, it is held that the misrepresentations must have been intended and allowed by those making them to operate on the mind of the party induced, and have been suffered to influence him. In Bradley v. Poole, 98 Mass. 169, the representations proved and relied on were made personally by the defendant to the plaintiff in the course of the negotiation for the shares the price of which the plaintiff sought to recover. Felker v. Yarn Co., 148 Mass. 226, 19 N.E.Rep. 220, was an action under Pub.St. c. 106, § 60, to...