Whiting v. Price

Holmes, J. The representation that the bond was secured by the machinery and real estate of the Jacksonville Electric Light Company and of other companies of the value of half a million dollars, if fraudulent, went beyond the latitude allowed to sellers by the latest decisions of this court. Kilgore v. Bruce, 166 Mass. 136. Andrews v. Jackson, 168 Mass. 266. Naming-the company and going into particulars as it did, the statement could not be excused as one of those generalities which, whether-true or not, are to be expected from a man who wants to sell his goods. Homer v. Perkins, 124 Mass. 431, 433. Roberts v. French, 153 Mass. 60, 63. Way v. Ryther, 165 Mass. 226, 229. It is alleged that the representation was false, and that the defendants knew it to be false. If so, it was fraudulent, even if not made for purposes of gain, and being made at a time when it was plain that it tended to induce the plaintiff to make a bargain different from the one which he thought he was making, if, as alleged, it had that effect, it was actionable. See Stone v. Denny, 4 Met. 151, 161; Fisher v. Mellen, 103 Mass. 503; Litchfield v. Hutchinson, 117 Mass. 195; O'Donnell v. Clinton, 145 Mass. 461, 462, and cases cited; Holst v. Stewart, 154 Mass. 445, 446; Railton v. Mathews, 10 Cl. & F. 934, 941, 944. According to the bill of exceptions the ruling of the court was upon the declaration, and, this being so, the statement that the plaintiff did not contend that the representations were intentionally fraudulent cannot be taken to mean more than that he disclaimed a corrupt intent, which, as we have said, is not necessary to the cause of action, however improbable it may be that such representations, if known to be false, should be made with any intent except to bring about the sale. It was said at the argument that the case had been opened to the jury before the 578 ruling. Probably the disclaimer had reference to the evidence rather than to the pleading, and the judge may have'been thinking of the opening rather than of the declaration when he ruled. There is a negative pregnant in the declaration which would have to be considered seriously if we were not satisfied that nothing turned on it in this case. We mention it because it has become an every-day fault in Massachusetts pleading to give the negative the same particularity as the averment. Here the negative is that the bond was not secured by the machinery and real estate of the value of half a million dollars of the Jackson Electric Light Company, or of any other companies. This is consistent with the security’s having existed to the value of four hundred thousand nine hundred and ninety-nine dollars. Gould, Pl. (4th ed.) c. vi. §§ 30, 32. But we assume that the declaration was intended and taken to deny the existence of any security of the kind alleged. It is unnecessary to consider whether insufficiency in the declaration justifies directing a verdict. Exceptions sustained.