Stubbs v. Johnson
| Decision Date | 26 July 1879 |
| Citation | 127 Mass. 219 |
| Parties | Simeon Stubbs v. Rufus A. Johnson |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk.
Exceptions sustained.
E Avery & E. M. Johnson, for the defendant.
E. T Buss, for the plaintiff.
This is an action of tort. The plaintiff in his declaration charges the defendant with several false and fraudulent representations, by means of which he alleges that he was induced to part with his property in exchange for a note against another person, secured by mortgage on real estate, and then owned and held by the defendant.
At the trial, only two of these representations were treated by the court as material or actionable; one was the statement that $ 400 had been paid on the note to the defendant; and the other, the statement that the note was as good as gold, and would be paid at maturity. As to the first of these, the jury were told that the statement was an averment of an existing fact in reference to the note, within the knowledge of the defendant, and was therefore a material and actionable representation. As to the other, they were told that the part of it which expresses the belief that the note would be paid at maturity was not material, because it was the expression of an opinion as to a future event, and was important only as tending to show what was meant by the phrase "as good as gold." They were further instructed, that if, by the whole statement, the defendant intended only to express the opinion that the note was a good note, then the representation was not actionable; but, on the other hand, if the defendant intended to represent that the maker of the note was a man of financial ability to pay, then it would be a representation of a material fact, which the defendant asserted to be true on his own knowledge, and an actionable representation; and they were accordingly directed to find whether the statement was a mere expression of opinion about the note, or a representation of the financial ability of the maker of the note.
But the test thus stated by the learned judge we think had a tendency to mislead the jury upon the question before them, because a representation as to a man's financial ability to pay a debt may be made either as a matter of opinion, or as a matter of fact; the subject of the statement does not necessarily determine which it is.
It is often impossible to determine, as matter of law,...
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