Hunting v. Downer
| Citation | 23 N.E. 832,151 Mass. 275 |
| Parties | HUNTING v. DOWNER. |
| Decision Date | 28 February 1890 |
| Court | United States State Supreme Judicial Court of Massachusetts |
A. Hemenway and C.T. Duncklee, for plaintiff.
Perkins & Lyman, for defendant.
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 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 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 properly pleaded, and submitted the case to the jury upon the single issue whether the plaintiff loaned the defendant the sum of $1,500, actually, and whether the defendant gave the note in suit for it, (whether that was the original note, or one for which it had been exchanged,) instructing the jury, if this had been proved by the plaintiff, that plaintiff was entitled to recover. There had been evidence introduced that defendant was a broken man, physically and intellectually, of his intimate relations with the plaintiff, and of the imposition practiced upon him; but the court held that this was not of importance, in the present posture of the case, such defense not having been set up in the answer.
By these requests for instructions, the defendant sought to set up, as a distinct defense to the note, that it was obtained by fraud, through the confidential relations which existed between himself and the plaintiff, his own condition, the right he had to rely on the plaintiff for advice in his investments, and that it was given for stock which was known by plaintiff to be worthless, where the loan of money was but a pretense. The third request for instructions, above recited, does not, indeed, speak of the confidential relation of the defendant with the plaintiff; but it must be construed with the others, and as seeking to present a similar defense. If presented independently, it should not, certainly, have been given; as the mere purchase of worthless stock, and known by the seller to be so, will not exonerate...
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