Bannister v. Alderman

Wells, J. This case is like Fisher v. Mellen, 103 Mass. 503, in its substantial features. Both are in tort, for false representartion of facts susceptible of knowledge and made by the defendant as of his own knowledge. In both the declaration, after alleging the untruth of the statements relied on, proceeds to add “ all which the defendant well knew.” In both therefore the evidence offered by the defendant was within the issue as presented by the pleadings, and it did not appear that the plaintiff proposed to narrow the issue, or gave any notice that he intended to do so, until the defence was opened and entered upon. The evidence offered was similar, and equally competent in each case. In Fisher v. Mellen it was excluded by the judge at the trial, and the ruling was sustained by this court. In the present case it was admitted, and we think the ruling admitting it must be sustained. The difference results from the fact that the position of the question, as it arises in the two cases, is reversed. It is incumbent upon the excepting party to show that the ruling was wrong as applied to his case, and that he has suffered, or was liable to suffer prejudice thereby. In these cases, if the plaintiff proved the representations of fact to have been made by the defendant as of his own knowledge, with intent to induce the plaintiff to rely and act upon confidence in his assertions, and that the statements were untrue, it would not be necessary for him to go further and prove that the defendant knew them to be untrue when he made them. The allegation to that effect in the declaration not being descriptive, the plaintiff might rely upon proof of such other allegations as, without this, would constitute the substantial cause of action sued for. If he does so, and the evidence offered by him, and the conduct of the case are confined to the narrower ground of liability, all evidence of opinion of the defendant or reasonable cause of belief that the statements made by him were true, become immaterial [264] and irrelevant. When offered by the defendant it should be admitted or excluded according as the presentation of the case' appears to involve a question of wilful purpose to deceive or otherwise. In determining this, much depends upon and must be left to the good sense and sound discretion of the judge who presides at the trial, and to his better appreciation of what passes before him. The declaration alleges that the defendant, when making the statements, well knew that they were untrue. If that charge is kept before the minds of the jury while the plaintiff is putting in his case, it would be unfair to permit him, by merely disclaiming it as constituting any part of the legal ground upon which he seeks to recover, to exclude the defendant from counteracting the effect of evidence or suggestions in that direction. When deciding, in bane, upon the propriety of admitting or excluding evidence offered apparently for such purpose, or which would be competent for such purpose, we are bound to presume that the judge at the trial exercised his discretion reasonably and properly in view of the course of the trial, and that instructions, adapted to the form of the real issue and the state of the evidence before them, were given to the jury. In the absence of anything to the contrary being made to appear by the bill of exceptions, the ruling of the judge at the trial, whether admitting or excluding such evidence, will be sustained; because, being competent within the issue as made by the pleadings, its admission may properly be determined by its relevancy as indicated by the course of the trial and the conduct of the case on the part of the plaintiff. Without departing from or qualifying the principle adopted in Fisher v. Mellen, but in strict accordance therewith, we think the exceptions in this case must also be Overruled.