Mckinley v. Warren
| Decision Date | 17 June 1914 |
| Parties | McKINLEY v. WARREN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William D. Regan, of Boston, for plaintiff.
Henry D. Crowley, of Boston, for defendant.
This case comes before us on exceptions by both the plaintiff and the defendant. It first was tried without a jury by a judge of the superior court, who found that the plaintiff's testimony was to be believed, but ruled as matter of law in favor of the defendant. Thereafter he filed an order setting aside the finding for the defendant on the ground that he was satisfied that his finding was erroneous in law. This was done through his own sense of justice without any motion therefor. This was plainly within the power of the court. A new trial may be granted for an error of law. Loveland v Rand, 200 Mass. 142, 85 N.E. 948. In the absence of any narrowing statute a trial court is clothed with jurisdiction of its own motion to order a new trial for numerous causes, including an error in law, if necessary to prevent a failure of justice. Ellis v. Ginsberg, 163 Mass. 143, 39 N.E. 800; Forbes v. New York Life Insurance Co., 178 Mass. 134, 59 N.E. 636. St. 1897, c. 472, now embodied in R. L. c. 173, § 112, is confined to the setting aside of verdicts. Verdict imports trial by jury. Bearce v. Bowker, 115 Mass. 129; Langley v. Conlon, 212 Mass. 135, 139, 98 N.E. 1064, Ann. Cas. 1913C, 421. That statute has no relation to a proceeding where there is no trial by jury. R. L. c. 173, § 113, does not limit the power of a judge sitting without a jury to set aside a finding made by him in either fact or law, of his own volition and without the making of any motion, if necessary to do justice between the parties.
This is an action of tort for deceit in the borrowing of money. The judge who heard the case the second time made a finding of facts in substance to the effect that the defendant induced the plaintiff to lend him $7,000 through the false representation that he had an option to purchase stock in a corporation for $10,000, and that as he could raise only $3,000 he needed to borrow $7,000 to make up the purchase price, and as collateral security for a loan for this amount he would give a joint note of himself and his wife and deposit the certificate of the stock so to be purchased. In fact, the defendant's option was to purchase the stock for $5,000, which he well knew at the time of making the representations. He made the representations with intent to deceive the plaintiff and with intent that the plaintiff should rely upon them, and the plaintiff in fact believed and relied upon them, and lent the money accordingly. The plaintiff and the defendant filed separate bills of exceptions, but neither states that it contains all the material evidence. It is not certain that both bills of exceptions contain all the material evidence. Resort may be had to both bills to ascertain the facts under such circumstances. The defendant contends that this finding was not warranted by the evidence. In the plaintiff's bill of exceptions it is said that the plaintiff testified that the defendant told him he had 'an agreement for the purchase of the stock for $10,000.' The defendant's letter to the plaintiff refers to his 'option' for the purchase of the stock. The findings of fact cannot be set aside as unsupported by the evidence.
It further is argued that the representation amounted to no more than a statement as to cost of the stock to the person making the representation, and that under the rule in this commonwealth, as laid down in Hemmer v. Cooper, 8 Allen, 334, and similar cases, such representation will not support an action for deceit. It has been said repeatedly that legal immunity for falsehoods in the course of commercial transactions will not be extended beyond the bounds already established. Mabardy v. McHugh, 202 Mass. 148, 88 N.E. 894, 23 L. R. A. (N. S.) 487, 132 Am. St Rep. 484, 16 Ann. Cas. 500, and cases there cited; Noyes v. Meharry, 213 Mass. 598, 100 N.E. 1090. The representation by the defendant in the case at bar was that he had an option to buy the stock for $10,000. He well knew that he did not have such an option. This was a representation of an existing fact calculated to influence the mind of one who was solicited to loan money upon the security of the stock as collateral. This might have been found to be a misstatement of a present material fact. It was not a representation as to the price paid and is distinguishable in...
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