Reeve v. Dennett

• Decision Date: 10 May 1887
• Parties: REEVE v. DENNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 23

11 N.E. 938

REEVE v. DENNETT.

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1887

COUNSEL

R.M. Morse, Jr., and W.H. Towne, for plaintiff.

The plaintiff offered evidence tending to prove that the invention called "Naboli" was worthless. The defendant was then permitted to offer the testimony of 12 of his patients, not experts, who stated that they had had their teeth filled by the defendant without pain, and that on these occasions he had used naboli. The plaintiff submits that this testimony was irrelevant and incompetent, and should have been excluded. It introduced several collateral issues, such as the condition of the teeth of each patient, the nerve and pluck, etc., but was irrelevant to the main issue upon trial. But a conclusive objection to the evidence was that the plaintiff's claim and the testimony of his experts were not that the ingredients of this compound were not useful in preventing pain in dental operations, but that there was no practical value in the combination over the single ingredients. These witnesses were not competent to testify and did not undertake to testify, on this point. The cases are numerous in which it has been held that evidence from witnesses, not experts, as to collateral facts, is not admissible. See Lincoln v. Taunton Copper Manuf'g Co., 9 Allen, 181. It has been held incompetent to show that, where gas had escaped into other houses than the plaintiff's, sickness had followed, (Emerson v Lowell Gas-Light Co., 3 Allen, 417;) incompetent to show that, before plaintiff was hurt on highway, another person using due care, was injured at same place, (Collins v. Dorchester, 6 Cush. 396; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 342; Darling v. Stanwood, 14 Allen, 504; Ingledew v. Northern R.R., 7 Gray, 86; Concord R.R. v. Greely, 3 Fost. 237;) evidence that horses other than plaintiff's were frightened by defendant's locomotives, inadmissible, (Lewis v. Eastern R.R., 60 N.H. 187; Holcombe v. Hewson, 2 Camp. 391.) On the other hand, it is well settled that the testimony of experts is necessary upon all questions which require special study, observation, and experience in order to form a reliable judgment.

As to defendant's exceptions. The fifth count is a count in tort. Reeve v. Dennett, 141 Mass. 207, 6 N.E. 378. There was evidence for the jury tending to sustain the material allegations of the fifth count. The court correctly ruled that the plaintiff was not bound to prove every allegation precisely as made. The gist of the charge was that the plaintiff had been induced by defendant's false representations to lend him $1,400. Cunningham v. Kimball, 7 Mass. 65; Springer v. Crowell, 103 Mass. 65; Packard v. Pratt, 115 Mass. 405.

D.E. Ware and J.G. Thorp, Jr., for defendant.

The defendant's undisputed discharge in insolvency was a defense to all the plaintiff's counts in contract. There was no evidence tending to establish a cause of action in tort entitling the plaintiff to recover the $1,400 on the fifth count, and the court should have directed a verdict for the defendant as requested. We have to consider, as sustaining the alleged cause of action in the fifth count, (a) the representations alleged in the fourth count, assumed for the sake of the argument to be imported into the fifth count; and (b) the single representation as to ownership set out in the fifth count.

Such of those representations as are actionable representations of fact, and not mere expressions of opinion, relate wholly to the condition of the company, its business, and the value of its stock. In view of the evidence, is it a tenable proposition that the plaintiff was induced to enter into the transaction of April, 1881, by defendant's representations as to the condition of the company, its stock and business, made in April and May, 1880? And in this connection it is, as a matter of law, entirely immaterial whether or not these representations, when made, were false or not; or whether or not the plaintiff was induced by them in May, 1880, to purchase stock or loan money. What he relied on or was induced by in 1880 is of no consequence in 1881, unless the same representations were continued by defendant, still believed by the plaintiff, and acted upon by him in ignorance of their falsity. Fogg v. Pew, 10 Gray, 409; Whiting v. Hill, 23 Mich. 399, 405. As a matter of law, an active member or director of a company or corporation is presumed to know the nature and state of the company's business. Ely v. Stewart, 2 Md. 408, 416; Jones v. Arkansas Mechanical, etc., Co., 38 Ark. 17, 25; Corbett v. Woodward, 5 Sawy. 403, 416, 417; Morgan v. Skiddy, 62 N.Y. 319, 326. And in an action based on fraudulent representations, if the plaintiff had equal knowledge with the defendant as to the matters to which they relate, he will be presumed to have acted on that knowledge, and not on the defendant's representations. Poland v. Brownell, 131 Mass. 138; Salem India-Rubber Co. v. Adams, 23 Pick. 256; Brown v. Leach, 107 Mass. 364; Rockafellow v. Baker, 41 Pa.St. 319; Ely v. Stewart, 2 Md. 408, cited supra; Whiting v. Hill, 23 Mich. 399, 405; Hobbs v. Parker, 31 Me. 143; Slaughter v. Gerson, 13 Wall. 379. Proof of a statement of what would be, or of a promise, will not sustain an action founded on false and fraudulent representations. Jackson v. Allen, 120 Mass. 64, 79; Jorden v. Money, 5 H.L.Cas. 187, 214, 216; Pedrick v. Porter, 5 Allen, 324. It is submitted, therefore, that the court erred in leaving it to the jury to say whether or not those earlier representations exerted, or were intended to exert, an influence upon the plaintiff's mind to induce him to enter into the $1,400 transaction--First, because there was no evidence that they did exert any such influence; and, second, because, if so intended, it will be presumed, as matter of law, either that the plaintiff knew that the representations were false, or else that he did not act upon them, but upon his own sufficient knowledge of the facts to which they relate. This court cannot say that the verdict of the jury on the fourth count shows that the jury found that no such false representations were made, and therefore they did not influence the jury in their finding on the fifth count, and that the defendant was not injured by the court's instructions. Under the instructions of the court, the jury could have found that a sale instead of a loan was induced by such representations, and therefore have found the verdict for the defendant consistently with finding also that the representations were false.

There remains to be considered the representation relating to the defendant's purchase of the Dorchester land. The evidence is conclusive that, before the plaintiff acted at all in this matter, the representation on which he says he relied as inducement for his action was a true representation. The defendant had bought the land. It follows, then, as matter of law, that the representation was not actionable. To be actionable the representation must be a false representation of a fact when acted upon. If it was not false when acted upon, or if the plaintiff knew, at the time, of its falsity, he was not induced to act by reason of any falsity in the representation. Fogg v. Pew, ubi supra; Whiting v. Hill, 23 Mich. 399; Tuck v. Downing, 76 Ill. 71; Hager v. Grossman, 31 Ind. 223. But assuming that the representation was false, and that it was acted upon by the plaintiff, what damage did he suffer? It is a familiar principle of the law of deceit that false representations intended to influence the plaintiff are not actionable, unless damage results to him. Freeman v. Venner, 120 Mass. 424; Bartlett v. Blaine, 83 Ill. 25; Bradley v. Fuller, 118 Mass. 239; Lamb v. Stone, 11 Pick. 527; Randall v. Hazelton, 12 Allen, 412. It is submitted on the evidence that the court erred in not directing a verdict for the defendant on this count.

The court should have ordered counts 1, 2, 3, and 6 stricken from the record after the plaintiff's election to proceed to trial on the fourth and fifth counts. Dows v. Swett, 127 Mass. 364; Mullaly v. Austin, 97 Mass. 30.

The court should have instructed the jury that, to recover on the fifth count, the plaintiff must show what the count alleged; namely, that the plaintiff took the 1,000 shares of stock, and borrowed on four months' credit, with a pledge of said stock as collateral. As this is what the plaintiff alleges he was induced to do to his injury, the proof of it was essential to his case. But there was no evidence to prove it. The plaintiff testified that he took no stock to raise money on, and raised none on the stock. This is a substantial variance.

The evidence of Drs. Wetherbee and Dudley should have been excluded. The letters patent of the United States were prima facie evidence of the novelty of the invention. Nash v. Lull, 102 Mass. 60, 62. The mere fact that the ingredients which go to make up a compound are old, and have been used for the same purpose for which the new compound is to be used, is not evidence of its want of novelty. Ryan v. Goodwin, 3 Sum. 514; Imhaeuser v. Buerk, 101 U.S. 647; In re Corbin, 1 Macr.Pat.Cas. 521; Bump, Pat. (2d Ed.) 76, cases.

That the ruling of the court admitting the testimony of Dr Dennett's patients that during certain dental operations on their teeth, in which Dr. Dennett testified naboli was used, they felt no pain, was correct, seems too plain for argument. The patient should be allowed to testify, because he alone can give expression to the sensations felt. And the courts have never doubted this. The only doubt has been whether any one other than he should be allowed to testify as to his declarations concerning those sensations. This court has held...