Lufkin v. Cutting
| Decision Date | 13 January 1917 |
| Parties | LUFKIN v. CUTTING et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Case Reserved from Superior Court, Suffolk County; Jabez Fox, Judge.
Bill by John W. Lufkin against Charles H. Cutting, Executor, and another. An interlocutory decree was entered overruling defendants' demurrers, and the case was sent to a master, who filed his report. Defendants filed exceptions to the findings of fact made by the master. On reservation, by a judge of the superior court, on the master's report and the exceptions thereto. Decree ordered to be entered confirming the interlocutory decree, and overruling the exceptions to the master's report and confirming it, also directing that the contract in suit be rescinded, and defendants ordered to reconvey to plaintiff, and to pay $1,000 damages.
Hannigan & Fox and Geo. R. Farnum, all of Boston, for plaintiff.
Herbt. Parker and Geo. A. Parker, both of Boston, for defendants.
This is a bill in equity brought against the executor of the estate of Charles C. Moulton, and also against one Mary B. Gates, to rescind a contract entered into between the plaintiff and Moulton, and to recover back a certain parcel of real estate in Winchester in this Commonwealth which was conveyed by the plaintiff to Moulton and one Day, in exchange for the transfer to the plaintiff of twenty thousand shares of stock in the Sherbrooke Gas and Vitrified Brick Company.
The bill alleges that in November, 1908, the plaintiff was induced to enter into the contract by reason of certain false representations made by Moulton as to the value of the stock; that Moulton died on December 26, 1911, and the defendant Cutting has been duly appointed executor of his estate; that the defendant Cates claims title to the real estate as beneficiary under the will of Moulton, and that the defendant Cutting claims an interest in the real estate as such executor.
The defendants severally demurred to the bill and an interlocutory decree has been entered overruling the demurrers. The case was sent to a master who has filed his report. The defendants filed exceptions to five findings of fact made by the master and the case is before us upon a reservation, made by a judge of the Superior Court, upon the master's report and the exceptions thereto. The following facts, among others, are found by the master: The plaintiff at the time of the hearing was apparently about seventy years of age; he had known Moulton since 1883 and respected and confided in him; from 1883 until April, 1907, they had not met; soon after the latter date the acquaintance was renewed and Moulton began to talk with the plaintiff about some valuable property situated in the State of Kansas upon which, he stated, was located a brick, oil and natural gas plant; that in the fall of 1907, and thereafter, Moulton continually talked with the plaintiff about this property and said that he [Moulton] or they had a piece of property in Kansas that was going to develop into a large property;
The master also made the following findings: That Moulton told the plaintiff that if he would buy the stock he (Moulton) knew the plaintiff would have a good income all his life and would get more than ten per cent.; that Moulton told the plaintiff in substance that the property was making money; that the company was selling the bricks at a great profit and was accumulating money all the time; that the gas works were equal to paying a dividend on the whole brick plant; that a little more money was needed for more kilns to carry on the business; and that it was proposed to raise it by selling treasury stock; that a large banking house on State Street, Boston, was selling the stock rapidly; that it was going to increase in value; that a number of people on State Street were large investors in the stock; that he (Moulton) knew of these things because he was connected with the people who were in the company; that the company had a contract to build a state house in Kansas City, and had contracts with the United States, and large orders in different parts of the State of Kansas; that the bricks were being used in the streets and that there was an unlimited amount of shale and oil.
Many other findings are recited in the master's report of representations made by Moulton to the plaintiff.
He finds there was no evidence that the company had bought out any competing business or any other plant; that Moulton was acquainted with people who were interested in the property; that from the time the company began to make bricks in July, 1908, but a limited amount had been so manufactured or sold and that bricks enough to ensure a profit had not been sold; that in October, 1908, the company was selling very few bricks and had few contracts for such sale; that there was no available surplus in the treasury and the company was not accumulating money; that no vote had been passed to pay a dividend of ten per cent. in January, 1909, and the company never had sufficient funds to pay such a dividend; that at the time the stock was transferred to the plaintiff, the company was doing business on borrowed capital and did not have sufficient assets to pay its debts; that the brick business at that time could not be carried on profitably; that the supply of oil and gas was not unlimited and the prospects of success were not good; that at that time (October, 1908) the stock of the company had no market value, but only a prospective value which subsequently was found to be worthless; that the gas plant was not paying a dividend on the whole plant; that the company was not earning enough to pay its ordinary current expenses; that there was no evidence that any large banking concern on State Street, in Boston, has sold the stock or that people on State Street had invested in the stock of the company; and that there was no evidence that the company had large orders for bricks in different parts of Kansas or that there were ten or twelve oil wells on the property.
The master also finds that, in the presence of Moulton certain statements were made to the plaintiff by Day, and by one Averill who was a director of the company. These statements were in corroboration of those which Moulton had previously made to the plaintiff; that during the negotiations between the plaintiff and Moulton, which extended over a period of at least a year, both Day and Averill took an active part.
The master further finds that the plaintiff was induced by Moulton to believe that he was purchasing treasury...
To continue reading
Request your trial
-
Wiebe v. Seely
...abate it as to others in the following tort cases: Baker v. Braslin, 16 R.I. 635, 18 A. 1039, 6 L.R.A. 718 (joint tort); Lufkin v. Cutting, 225 Mass. 599, 114 N.E. 822 (action against partners for tort of one of them); Rogers v. Carmichael, 184 Ga. 496, 192 S.E. 39 (idem); Swensen v. McDani......
-
McGrath v. C.T. Sherer Co.
...by the defendants. Ginn v. Almy, 212 Mass. 486, 503, 99 N. E. 276;Noyes v. Meharry, 213 Mass. 598, 100 N. E. 1090;Lufkin v. Cutting, 225 Mass. 599, 604, 114 N. E. 822. Compare Everett v. Foster, 223 Mass. 553, 554, 555, 112 N. E. 239. It is contended by the defendants that the plaintiff did......
-
Shapiro v. McCarthy
...v. Russo, 215 Mass. 83, 84, 102 N. E. 128;Polvere v. Hugh Nawn Contracting Co., 215 Mass. 199, 204, 102 N. E. 334;Lufkin v. Cutting, 225 Mass. 599, 607, 114 N. E. 822. It was permissible by amendment to strike out the party originally named as defendant and to substitute a different person ......
-
McGrath v. C.T. Sherer Co.
... ... Ginn v. Almy, ... 212 Mass. 486, 503, 99 N.E. 276; Noyes v. Meharry, ... 213 Mass. 598, 100 N.E. 1090; Lufkin v. Cutting, 225 ... Mass. 599, 604, 114 N.E. 822. Compare Everett v ... Foster, 223 Mass. 553, 554, 555, 112 N.E. 239 ... ... ...