Bank of Commerce & Trust Co. v. Schooner

Crosby, J. This case arises on demurrer to a declaration setting forth a conspiracy to defraud, entered into by and between the defendant and one Cox, by means of which, it is alleged, they fraudulently obtained large sums of money from the plaintiff. After overruling a demurrer to the substitute declaration, the case was reported to this court by the trial judge upon the substituted declaration and the demurrer. The defendant assigned fifty-six grounds of demurrer, but expressly waived the following: 7-9 inclusive, 15-25 inclusive, 29, 30, 39-44 inclusive, 52 and 53. We will consider the remaining grounds of demurrer in the manner they are dealt with in the defendant’s brief. It is the contention of the defendant that the declaration does not state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action as required by G. L. c. 231, § 7, cl. 2. This objection is raised by grounds numbered 1, 2, 3, 10, 11, 12,14, 27, 28, 31, 32, 33, 34, 36, 37, 38, 47, 48, 49, 50, 51, 54, 55, and 56. The declaration alleges a conspiracy between the defendant and Cox to defraud certain banks and trust companies; it alleges specifically the means employed in pursuance of the scheme, and that such scheme was employed by the defendant and Cox, in a manner set forth with adequate particularity, to defraud the plaintiff and that it was thereby defrauded to its damage. G. L. c. 231, § 7, cl. 2 is as follows: “The declaration shall state concisely and with substantial cer [204] tainty the substantive facts necessary to constitute the cause of action.” Davis v. H. S. & M. W. Snyder, Inc. 252 Mass. 29, 34, 35. A careful examination of the allegations in the declaration shows that the substantive facts relied on are' set forth specifically, concisely and with substantial certainty, and that it is not demurrable upon the grounds above referred to. Read v. Smith, 1 Allen, 519, 520. The objection that certain allegations relate to matters between Cox and third parties cannot be sustained. These allegations are material as describing the fraudulent plan, and for that reason are neither irrelevant nor immaterial. See Gardner v. Preston, 2 Day, 205. It follows that the following grounds of demurrer are without merit: 4, 6, 26, 35, and 45. Allegations of result are allegations of fact and are not conclusions of law. Accordingly the thirteenth ground of demurrer is overruled. The ground that the allegations relate to matters of evidence, and are not such ultimate facts as properly could be alleged is overruled. These allegations pertain to conclusions of fact and are properly pleaded. Cosmopolitan Trust Co. v. S. L. Agoos Tanning Co. 245 Mass. 69. Accordingly, the fifth and forty-sixth grounds are overruled. The remaining question argued by the defendant is that the declaration alleges representations which are within the statute of frauds, G. L. c. 259, § 4, and for that reason the plaintiff is barred from recovery. That statute has not altered the rules of pleading in law or equity. Whether the representations alleged in a declaration are oral or written is a matter of proof and not of allegation. Price v. Weaver, 13 Gray, 272. Where representations alleged are within the terms of the statute, a declaration upon them need not allege that they are in writing. Elliott v. Jenness, 111 Mass. 29. As a defence the statute may be pleaded or waived at the election of the defendant. Livingstone v. Murphy, 187 Mass. 315, 318. If it.appears from the declaration in an action at law, or from the bill in a suit in equity, that the representations alleged are oral, when by the statute of frauds they must be in writing, demurrer will lie. Walker [205] v. Locke, 5 Cush. 90. Ahrend v. Odiorne, 118 Mass. 261, 268. Southwick v. Spevak, 252 Mass. 354, 357. Linsky v. Exchange Trust Co. 260 Mass. 15, 17. Quinn v. Quinn, 260 Mass. 494, 497, 498. If the declaration in the case at bar could be considered as coming within the terms of the statute, and if it alleges express representations on the part of the defendant, it does not appear from an examination of the declaration that such representations were not in writing as required by the statute. We are of opinion that the statute of frauds has no application to the allegations in the declaration in the case at bar. The statute applies only to such actions founded upon representations or assurances made concerning the “character, conduct, credit, ability, trade or dealings of any other person.” The present action is not founded upon any representation of the defendant. It is brought against him as a joint principal and tortfeasor in a fraud instituted and carried out for his benefit with respect to which the representations involved were not incidents in the scheme to defraud. The action is founded on the conduct of the defendant and Cox acting together to defraud the plaintiff, and by which it was induced to lend Cox large sums of money upon worthless securities. It is plain that if the allegations of the declaration are proved the plaintiff is entitled to recover the damages which it has sustained by reason of such unlawful acts. The fraud alleged in substance was as follows: Through concerted action of the defendant and Cox, a person of no financial resources, the defendant delivered to Cox United States Liberty bonds with which he was enabled to make himself appear to other banks and trust companies than the plaintiff to be a person of great wealth and entitled to credit, so that such other banks and trust companies were deceived and made loans to him and recommended him to the plaintiff. Relying upon Cox’s reputation of financial responsibility thus gained, the plaintiff made loans to him upon securities which afterwards were discovered to be worthless, and suffered loss. In principle such a method employed to obtain money and credit is indistinguishable from other cases of obtaining money or property by false pretences. Nash v. [206] Minnesota Title Ins. & Trust Co. 159 Mass. 437. Fowle v. Child, 164 Mass. 210. Light v. Jacobs, 183 Mass. 206. Feinberg v. Poorvu, 249 Mass. 88. Gardner v. Preston, supra. Russell v. Post, 138 U. S. 425. In re Friedman, 164 Fed. Rep. 131. Hamilton Inv. Co. v. Bollman, 268 Fed. Rep. 788. Backe v. Curtis, 139 Minn. 64. Bush v. Sprague, 51 Mich. 41, 54. As the demurrer could not properly be sustained upon any ground alleged, the entry must be Order overruling demurrer affirmed.