Kilgore v. Bruce

• Decision Date: 21 May 1896
• Parties: KILGORE et al. v. BRUCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 136
44 N.E. 108

KILGORE et al.
v.
BRUCE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1896.

Report from superior court, Suffolk county.

Action by G.C. Kilgore and others against George A. Bruce on a note. Heard on report. Judgment for defendant.

[44 N.E. 109]

Louis [166 Mass. 137]D. Brandeis and Ezra R. Thayer, for plaintiffs.

Elder, Wait & Whitman, for defendant.

ALLEN, J.

The plaintiffs contend in the first place that the alleged misrepresentations were not available in defense, because they were merely promissory in their character, and because they amounted to no more than dealer's talk, which the law cannot take notice of. According to the report, the plaintiff Kilgore had all of the shares of the company in his hands for sale, and was negotiating at the same time with the defendant, with West, and with Whitney, to sell a part of them to each. He told the defendant that all the stock should be sold, or none, and falsely and fraudulently represented that all the stock he was selling to either of [166 Mass. 138]the three purchasers was being sold for the same price, to wit, $1,400 per share, and that this was the price which Whitney, in especial, was paying. These representations were made in answer to specific questions put by the defendant, who told Kilgore that he would not make the purchase unless these were the facts. Being induced thereby, the defendant accordingly took 50 shares at $1,400 a share; but Kilgore had in fact already secretly agreed to sell 61 shares to Whitney at $1,221.42 per share, which agreement was carried out. The separate sales to the defendant, to Whitney, and to West were all consummated at about the same time. It is not stated in what order they were made. Nor is this material. In effect, they were contemporaneous. All these sales were to be made, or none. There is no room, therefore, for the suggestion that the representations of Kilgore to the defendant were merely promissory in their character; and we have no occasion to consider the question whether the defendant would be able to avail himself of them in defense, under his answer, if they were merely promissory. They were misrepresentations as to what the plaintiff Kilgore was doing at the very time when he was negotiating with the defendant. Nor do they fall within the class of such lying talk as dealers may indulge in with legal impunity. We have recently intimated our disinclination to extend this impunity further than is established by existing decisions. Way v. Ryther, 165 Mass. 226, 42 N.E. 1128...