Moseley v. Washburn

• Decision Date: 08 January 1897
• Citation: 45 N.E. 753,167 Mass. 345
• Parties: MOSELEY v. WASHBURN (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 345

45 N.E. 753

MOSELEY v. WASHBURN (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1897

It appeared that Brion executed a paper in the form of an assignment to defendant of a certain judgment he had obtained against plaintiff Sarah L. Moseley; that defendant was Brion's attorney in the case in which the judgment was recovered; that defendant afterwards negotiated a sale of the same to one Tisdale, and Brion then made an assignment to Tisdale; and that defendant received the money paid by Tisdale for the assignment, and had it at the time the trustee's process was served on him. Plaintiffs claimed there was no consideration for the assignment to defendant and that the money he received for the assignment to Tisdale was Brion's. Defendant requested the court to rule and instruct the jury as follows: "(1) The action cannot be maintained as the testimony of one witness only to the falsity of defendant's answers, but the same amount of evidence is required as would be necessary to convict the defendant of perjury. (2) If the answer of defendant was based on facts, and is a conclusion drawn from those facts the plaintiff cannot maintain his action by proof that the conclusion was erroneous; but he must go further, and prove that the defendant knew that the facts would not warrant his conclusion, and that, having such knowledge, he willfully made a false answer. (3) If the alleged false answer relates to a matter which, upon the whole examination, appears to be and is immaterial, and so does not cause the trustee to be discharged, the plaintiff is not damaged by such answer, and cannot maintain this action on account of such answer. (4) If defendant's answers, or any of them, may have more than one construction put upon them, they should be construed mutiori sensu, consistently with the presumption of defendant's innocence. (5) There is no evidence in the case that would warrant a verdict for the plaintiff. (6) Upon all the evidence in the case, the jury should render their verdict for the defendant. (7) There is no evidence in the cases that would warrant the jury in finding that the defendant knowingly and willfully answered falsely upon his examination. (8) If the purpose of the parties, on April 25 1890, was to transfer all rights of Washburn and Brion to Tisdale, that purpose might be effected with or without a written assignment. The payment of the price demanded would operate to transfer all such rights to Tisdale, or to Henry F. May, who furnished the money, and for whom he was acting. (9) Even if said assignment was made with fraudulent intent as against other creditors, yet the assignment would be valid between the parties. It would not be void, and is not voidable in this proceeding. (10) Even if the assignment from Brion to Washburn, dated March 25, 1890, was without adequate consideration, title would pass to Washburn by the assignment, and he would have a right to rely upon it. It would not be void, and is not voidable in this proceeding. He would not be accountable to Brion for the money...