Bailey v. Powell

De Courcy, J. Benjamin W. Givens, by writ dated April 23, 1917, sued the defendants in tort. The declaration is informal and obscure. It alleges that the defendants conspired to defraud him by obtaining from him "an outright assignment of his rights and title ” to certain letters patent, “ said assignment being represented to the plaintiff by said defendants Daly and McDermott as an assignment in trust for the benefit of the said plaintiff.” It further alleges that the instrument was obtained by threat of arrest; and “ That said outright assignment was recorded by the defendants Daly and McDermott, in the United States Patent — 113 — Office, although the transaction had never been completed or the declaration of trust executed.” Without reciting the incidental allegations, apparently the legal wrong of which the plaintiff complains is that by means of deceit, and perhaps duress, he was induced to execute an assignment which was absolute when he intended to transfer bis interest in the patent to Daly and McDermott in trust for himself. The remedy sought is not the reformation or cancellation of the agreement, but damages for the deprivation of the use and profit of the letters patent. Givens died on April 27, 1918. Subsequently the motion of his executor to be substituted as party plaintiff was allowed, “for the purpose of saving any rights he may have.” The action was dismissed on motion of two of the defendants. The controlling question of law raised by the report of the trial judge is, “ Is this a cause of action which survives the death of the plaintiff? ” Counsel for the plaintiff admits that the action did not survive unless it was “ for goods taken and carried away or converted, or for damage to real or personal property,” within the meaning of R. L. c. 171, § 1 (G. L. c. 228, § 1). The declaration does not allege a conversion. His property was riot “ carried away or converted.” Apparently Givens knowingly made the assignment, but with the understanding that he was to get back a declaration of trust. His remedy was in equity, to have the assignment set aside or modified on the ground of fraud. See Busiere v. Reilly, 189 Mass. 518; Devlin v. Houghton, 202 Mass. 75. Nor is this action at law one “for damage to . . . personal property.” As was said in Leggate v. Moulton, 115 Mass. 552, 553: “The statute was . . . intended to give a remedy which should survive only for injuries of a specific character to real or personal estate, and not to include actions for damages for frauds committed upon the intestate, by which she might have been induced to part with her property at less than its value. . . . The gist of the action in the present count is the fraud; the real estate has sustained no damage or injury.” And in Jenks v. Hoag, 179 Mass. 583, 586, it was added: “ It has been decided repeatedly that 'a mere fraud or cheat by which one sustains a pecuniary loss cannot be regarded as a damage done to personal estate.’ ” See also Houghton v. Butler, 166 Mass. 547; Rockwell v. Furness, 215 Mass. 557, and cases cited; Lee v. Fisk, 222 Mass. 418. Cheney v. Gleason, 125 Mass. 166, was a suit in — 114 — equity to recover specific property; and the executor was admitted to prosecute the suit without bringing a bill of revivor by virtue of St. 1865, c. 42 (K L. e. 171, § 17, G. L. c. 228, § 12). Pingree v. Coffin, 12 Gray, 288, 317. Lovejoy v. Bailey, 214 Mass. 134. Lufkin v. Cutting, 225 Mass. 599. The other questions appearing in the record and raised by the report are rendered immaterial by our decision that the action did not survive the death of Givens. The trial judge was warranted in dismissing the action; and on this record the entry must be Action dismissed.