Kerr v. Shurtleff
| Decision Date | 25 May 1914 |
| Parties | KERR v. SHURTLEFF. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry C. Long and Joseph L. Burns, both of Boston, for plaintiff.
Harry Bergson, of Boston, for defendant.
This is an action of tort in which the plaintiff alleges that to induce him to become a student in the College of Physicians and Surgeons the defendant falsely represented to him that the college had authority to grant the degree of Dentariae Medicinae Doctor (D. M. D.), and acting on that representation the plaintiff enrolled himself as a student pursued a course of study for three years and passed all the examinations given him by his instructors, but failed to get the degree of D. M. D. by reason of the fact that the defendant did not have authority to grant it. The defendant rested on the plaintiff's evidence. The jury found for the plaintiff, and the case comes before us on exceptions taken by the defendant. In disposing of these exceptions we will follow, in the main, the defendant's brief.
1. The defendant has contended that, on the plaintiff's evidence, what was said by him (the defendant) was a promise and not a representation of fact. The plaintiff testified on his direct examination that the defendant said to him, 'Well, we can fix you up nicely in three years, make you a D. M. D.' That was in effect a statement that the college had authority to grant the degree of D. M. D. It is true that on cross-examination the plaintiff testified to a promise that the college would make him a D. M. D. and did not repeat the statement made by him on direct that we 'can * * * make you a D. M. D.' In this state of the evidence it was for the jury to decide whether the statement testified to on direct was made. Tierney v. Boston Elevated Railway Co., 216 Mass. 283, 103 N.E. 783. If it was made, a misrepresentation of fact was made by the defendant.
2. The next contention made by the defendant is that under authority of Dawe v. Morris, 149 Mass. 188, 21 N.E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404, the representation was immaterial. Dawe v. Morris was a case where to induce the plaintiff to make a contract with a railroad company to build a section of its road the defendant falsely represented to him that he and another person had bought enough rails at a certain price to build it, and that if the plaintiff entered into a contract with the railroad company they would sell the rails to him at the same price. It was held that this was a representation as to a matter not material to the contract there in question. We are of opinion that the case at bar does not come within that decision. The representation that the college could grant a degree of D. M. D., made to induce the plaintiff to take a three years' course in the college, was a material representation.
3. The presiding judge in his charge told the jury:
'If you find * * * that the defendant promised the plaintiff that * * * the college would give him a degree at the end of a three years' course of study, and he did not get his degree, his degree was not given to him, then the plaintiff is entitled to recover, although the college had authority to grant it to him; if you are satisfied that there was an absolute promise on the part of the defendant to grant that degree, and you are satisfied that at the time the promise was made that the defendant had no intention that that promise should be carried out, that he had made the promise wrongfully and for the purpose of deceiving the plaintiff.'
We find nothing in the evidence stated in the bill of exceptions calling for an instruction on this point. For that reason the exception to this part of the charge must be sustained. Under these circumstances we do not find it necessary to consider whether the charge would have been correct if there had been evidence on which it could have been given. We do not intimate that it would have been correct.
4. The defendant contends that the plaintiff must fail because he did not get the necessary consent of the faculty to entitle him to a degree. But on the evidence the jury could have found that the plaintiff passed all his examinations satisfactorily. If under these circumstances a degree was not conferred upon him it was not his fault.
5. We are of opinion that the college did not have authority to grant the degree of D. M. D. By St. 1883, c. 268 (now R. L. c. 125, § 10), it is provided that:
'No corporation organized for medical purposes under the provisions of chapter one hundred and fifteen of the Public Statutes shall confer degrees, or issue diplomas or certificates conferring or purporting to confer degrees, unless specially authorized by the Legislature so to do.'
By an earlier act passed at the same session of the Legislature, the college here in question was authorized 'to confer the degree of Doctor of Medicine.' St. 1883, c. 153, § 1. The prohibition is against conferring any degrees unless specially authorized. The special authority given is limited to conferring a specified degree, namely, the degree of Doctor of Medicine. Under these circumstances the college did not have authority to confer the degree of D. M. D.
6. The jury could have found that the representation of fact made by the defendant was made as of his own knowledge without his knowing it to be true or false. That made out a case of deceit. Huntress v. Blodgett, 206 Mass. 318, 324, 92 N.E. 427; Adams v. Collins, 196 Mass. 422, 428, 82 N.E. 498; Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N.E. 168, 9 Am. St. Rep. 727. See also Montgomery Door & Sash Co. v. Atlantic Lumber Co., 206 Mass. 144, 154, 92 N.E. 71. The defendant took an exception to that part of the judge's charge in which the judge so instructed the jury. He seeks to support that exception on the ground that no allegation to that effect was inserted in the declaration. But the exception taken to this part of the charge did not refer to the state of the pleadings. Under these circumstances it is not now open to the defendant to support it on that ground. See Noyes v. Caldwell, 216 Mass. 525, 104 N.E. 495.
7. Against the defendant's exception Dr. Robertson was allowed to testify that in 1910 he asked the defendant whether the college had a right to grant the degree of D. M D., and the defendant told him that 'he must go slow on that, but if they [meaning the students] could pass the state board first he may be able to grant them a degree'; and Dr. Gilbert, under the defendant's exception, was allowed to testify that in May or June of 1909, the...
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