Rollins v. Quimby

Morton, J. This case was before us in 200 Mass. 162, where the plaintiff’s exceptions to a ruling directing a verdict for the defendant at the close of the plaintiff’s evidence were sustained, and the case was sent back for a new trial. The case has now been fully tried on both sides, both the plaintiff and the defendant testifying, which neither did at the former trial. At this trial there was a verdict for the plaintiff, and the case is now here on exceptions by the defendant to the refusal of the presiding judge to rule that on all the evidence the plaintiff was not entitled to recover, and to the admission of certain evidence. The defendant contends that the case as it now comes before us is distinguishable from the case as formerly presented. The [394] facts pro and con have been brought out much more fully at this trial than they were at the previous trial, and there is much stronger ground for the contention that the plaintiff and her husband, who acted as her agent, were not so ignorant, especially the husband, as1 they represented themselves to be in regard to busifiess matters and real estate transactions. But there was testimony at this trial as there was at the other tending to show that the defendant falsely represented the mortgages to be first mortgages and that the plaintiff and her husband both relied on the representations so made. The defendant and Spooner both strenuously denied that any such representations were made and in this and other matters the parties were diametrically at issue. In that situation it plainly was for the jury to determine what the facts were and whether, taking all of the circumstances into account, the plaintiff and her husband were warranted in relying upon the representations alleged to have been made. It could not have been ruled as matter of law that the plaintiff and her husband were guilty of negligence in relying upon such representations. It was for the jury to say what experience the plaintiff and her husband had had in real estate and business matters and from that and their appearance upon the stand to determine whether they exercised the degree of care which would naturally be expected of them or whether they were attempting to enforce an unjust claim. It cannot be said that there was no evidence warranting the verdict. The only exception to the admission of evidence which has been argued by the defendant is that to the admission of a conversation between the plaintiff’s husband and Spooner and a man by the name of West, at which the defendant was not present, which related to a cashing of one of the mortgages by West. The plaintiff’s husband testified that, upon his objecting that he could not take the purchase price all in mortgages but must have some money, the defendant said “ I will, have a man there to cash it,” meaning, evidently, one or more of the mortgages. The plaintiff’s husband also testified that West was introduced to him by Spooner as the man who was to cash the mortgages. And it could have been found that he was there pursuant to the defendant’s undertaking as part of the sale and purchase to find a man who would cash one or more of the [395] mortgages and that Spooner was acting for the defendant. Under those circumstances the conversation was admissible as bearing on the general contention of the plaintiff that she and her husband were induced to make the sale and conveyance by false representations on the part of the defendant, and the objection that the defendant was not present was met by the fact that Spooner was acting or could be found to be acting as his agent. The other exceptions to the admission of evidence have not been argued and we treat them as waived. Exceptions overruled.