Hunting v. Downer

• Decision Date: 28 February 1890
• Parties: HUNTING v. DOWNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 275
23 N.E. 832

HUNTING
v.
DOWNER.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1890.

Exceptions from superior court, Suffolk county; EDGAR J. SHERMAN, Judge.

Action by Edward A. Hunting against Chester Downer upon a promissory note.

[151 Mass. 276]A. Hemenway and C.T. Duncklee, for plaintiff.

Perkins & Lyman, for defendant.

DEVENS, J.

It was alleged by the plaintiff that the consideration of the note in suit was a loan of money made by him to the defendant. The defendant, by his answer, had denied each and every allegation in the plaintiff's declaration, and also the signature of the note; adding, as a further answer: “If the plaintiff proves the execution of said note, then the defendant says there was no consideration for said note moving from the plaintiff to the defendant, the said note having been received by the plaintiff in part payment of certain stock delivered by him to the defendant, which stock was worthless, and known by the plaintiff to be worthless.” It was the contention on behalf of the defendant that the plaintiff, occupying a confidential relation to defendant, who looked to him for advice, and who was a man broken in health, and, to some extent, intellectually, had induced defendant to buy stock in a certain rubber company, which stock was worthless, and that the loan of money was only pretended, the real consideration being the purchase of stock. After the conclusion of the argument, which had been based on this proposed defense, and the reply of the plaintiff which controverted it, the defendant asked, in substance, that the jury should be instructed that if the note was given in part payment for a transfer of the rubber stock, although the form of payment in money was gone through with, and the plaintiff knew that the stock was

[23 N.E. 833]

of no value, and the relations between the plaintiff and the defendant were of such a confidential nature that the defendant was warranted in relying on his judgment, the jury would be warranted in returning a verdict for the defendant; and, further, that if the plaintiff had been the adviser of the defendant in his investments, who was entitled to rely on his judgment, and if the plaintiff knew the stock was worthless, and the note in [151 Mass. 277]suit was given in part payment for the stock, it would be a fraud on the defendant, and the plaintiff could not recover; and, further, if the real consideration of the note was the transfer of the rubber stock, and the stock was valueless, and known by the plaintiff to be so, the note was without consideration, and the plaintiff cannot recover in this action. The court held that no such issues were...