Moody v. Perley

• Decision Date: 05 October 1915
• Citation: 95 A. 1047
• Parties: MOODY v. PERLEY et al.
• Court: New Hampshire Supreme Court

95 A. 1047

MOODY

v. PERLEY et al.

Supreme Court of New Hampshire. Grafton.

Oct. 5, 1915.

Transferred from Superior Court, Grafton County; Peaslee, Judge.

Action by Albie L. Moody against Isaac N. Perley and others. There was a verdict against one defendant, and both plaintiff and defendants excepted; the cause being transferred from the superior court. Plaintiff's exception overruled, and defendant granted a new trial.

Case, to recover damages for being prevented from redeeming certain premises in Enfield from mortgage foreclosure. The declaration contained two counts, the first alleging fraud in certain agreements relating to an assignment of the defendants' rights, and the second charging unlawful and fraudulent interference with the plaintiff's efforts to raise money with which to redeem. Trial by jury and verdict for the defendants Smith and Perley, and against the defendant Cooper.

The defendants excepted to the denial of their motions for a nonsuit and a directed verdict, and to instructions submitting the issue of unreasonable interference upon the ground that there was no evidence to support that issue. The plaintiff called the defendant Cooper as a witness and excepted to his cross-examination by the defendants' counsel. The material parts of the evidence and instructions are stated in the opinion.

Niles & Upton, of Concord, and George W. Stone, of Andover, for plaintiff. Edgar W. Smith, of Wells River, Vt., and Raymond U. Smith, of Woodsville, for defendants.

PARSONS, C. J. The defendants owned a mortgage upon certain property in Enfield, which was in process of foreclosure. The plaintiff owned a subsequent mortgage upon the same property and desired to redeem. The grounds of action alleged were fraud in certain agreements for an assignment of the defendants' rights, and fraudulent and unlawful interference with the plaintiff's efforts to borrow money from the Lebanon National Bank, which prevented his obtaining the necessary funds to redeem. There was a trial before a jury, with a verdict for the defendants Smith and Perley, but against the defendant Cooper. The defendants seasonably excepted to the denial of their motions for a nonsuit and a directed verdict, and to instructions submitting the issue of unreasonable interference upon the ground that there was no evidence to support a verdict upon that issue. The defendants by their motions for a nonsuit and a directed verdict took the position that there was no evidence upon which a verdict could be sustained against them upon the ground of fraud in the agreements for an assignment, or of fraudulent or unlawful interference with the plaintiff's attempts to secure a loan of money. Their exception to the submission of the issue of unreasonable interference raises the question whether, the question of fraudulent conduct being decided in their favor, or not found against them, there was evidence upon which their conduct could otherwise be found an unreasonable interference with the plaintiffs rights.

In substance, the jury were told that if the defendants acted honestly, were not guilty of fraud or deceit, still upon the evidence they might be found guilty of unreasonable interference. It was said:

"The substantive wrong here charged is that the course pursued by these defendants toward the plaintiff in the matter of redeeming from their claims amounted to a fraud upon him, or at least to an unreasonable interference with his right to make a contract with the bank if the bank was willing to make a contract with him."

And the questions for the Jury were finally summed up:

"So, then, you will determine according to these rules: First, were the defendants guilty of fraud upon the plaintiff, or were any of the defendants? Second, if not, did they unreasonably interfere with his right to borrow money wherever he could find any one to loan it to him?"

Although there was a verdict for Smith and Perley, the defendants' motions being made collectively in behalf of all three defendants, their exceptions must be overruled if there was evidence against any one of them. As there was no motion for a separate verdict or instructions as to Cooper, the questions presented by these exceptions are the same as they would be if the verdict had been against all three of the defendants. It is not seriously contended that there was not evidence that Smith and Perley fraudulently induced the plaintiff to delay redemption when he had the means, by promising an assignment of their interests, and that Cooper misrepresented to the directors of the bank Moody's wishes as to the amount of the loan required by him, or that these facts do not constitute evidence of fraud. The exceptions to the denial of the motions for a nonsuit and a directed verdict are overruled.

The plaintiff's evidence was that shortly prior to the expiration of the time of redemption he went to the bank with Smith and Perley, secured from the bank the discount of a note for $3,340.22, which amount with other funds he had was sufficient for the redemption, and offered the amount to them; that upon their suggestion that others might come in to redeem it was arranged to allow the matter to rest until the last day of redemption, when Smith and Perley agreed to come to the bank, assign their mortgage, and take the money; but that the bank subsequently withdrew the money, and the agreement was not carried out. Though the evidence perhaps raises the suspicion that, between the time of this arrangement at the bank in the presence of the assistant cashier (Hosford) and the final refusal of the bank directors to allow the loan, Smith and Perley may have done something to affect the final result, the case contains no evidence in support of such suspicion. On the contrary, it is negatived by the statements of Smith and Perley and of the bank directors who were inquired of on the subject. The jury would not have been warranted in finding Smith and Perley guilty of intermeddling upon mere suspicion. "The law demands proof and not mere suspicion." Dame v. Car Works, 71 N. H. 407, 52 Atl. 864.

It appeared that Cooper was the cashier of the bank and an undisclosed partner with Smith and Perley in the ownership of the first mortgage, but that he left Lebanon for a fishing trip in Maine on May 17th, and did not return until May 29th, the time of redemption expiring on May 22d. The evidence connecting Cooper with the transaction came from the plaintiff and Cooper. The plaintiff testified, in substance, that some time in March Cooper told him that the bank would loan him some money to help him in redeeming, and that his recollection was that he told Cooper he thought he would have about $4,000 and...