Powers v. Fowler

• Decision Date: 21 October 1892
• Parties: POWERS v. FOWLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 318

32 N.E. 166

POWERS v. FOWLER.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1892

COUNSEL

William A. Gile, for plaintiff.

Frank P. Goulding, for defendant.

OPINION

KNOWLTON J.

The only question in this case is whether there was any evidence which should have been submitted to the jury in support of the plaintiff's declaration. The plaintiff alleged that the defendant made fraudulent representations to him in selling an interest in certain land described as being in Kansas City. A part of the plaintiff's testimony was as follows: "The defendant spoke about a piece of land in Kansas City, thirty-five acres, at eight dollars the front foot, or $63,000,--about $63,000 what it amounted to,--to be put into a syndicate; to form a syndicate, of one thousand dollars a share. He had sold them all but six, and asked me to take two or three of them, or more, or like of that. *** He called at my house again, *** and a third time, *** and I took his word, and told him I would take one share then if everything was all straight and right, and he said it was. Then I says: 'In case you don't sell this land, how high are the taxes?' And he told me not very high. I don't remember. Then I says: 'We wont lose anything but the taxes and interest on our money.' " This conversation was in June. The plaintiff soon afterwards paid $1,000, and took a receipt for it from the defendant. In the following winter a deed of trust was delivered to him by the defendant, which purported to give him one twenty-fourth interest in the real estate, subject to mortgages amounting to $38,456, and which recited an agreement on his part to assume and pay one twenty-fourth part of this mortgage indebtedness. Subsequently an assessment was made for a payment towards the mortgage debt, and the plaintiff, in describing an interview with the defendant in regard to it testified as follows: "When he came in he spoke to me about sending the money on this assessment, and I told him I didn't propose to send it because there was a mortgage on it that he didn't represent to me at the time he sold it to me. I told him I understood it was all clear, or at least he represented it so to me. He said the property was all right, just as he represented it. I told him, if it was, to give me back my one thousand dollars and I would give him the interest on it. He said he would if he had the money, because he considered it all right." In describing a later interview between the plaintiff, the defendant, and Voorhees, a partner of the defendant in the real-estate transaction, the plaintiff said that he made a statement to Voorhees and the defendant of what the defendant told him when he bought the share. This is his account "He came to my house, and told me that they had bought this land, thirty-five acres in Kansas City, at $63,000, *** at eight dollars a front foot, which amounted to $63,000; *** about $63,000, or sixty-two and some odd. They had bought it at that price, and he said they had cut it up into shares, at a thousand dollars a share; that they had sold all but six and wanted I should buy one or more...