Wells v. Prince , 81 Mass. 562 ( 1860 )

Hoar, J.

It was held in Medbury v. Watson, 6 Met. 246, and more recently in Norton v. Huxley, 13 Gray, 285, that the Rev. Sts. c. 74, § 3, were to be construed only as a re-enactment of the St. of 1834, c. 182, § 5; and therefore that misrepresentations as to the character, credit, dealings or trade of a third person need not have been made in writing, in order to give a cause of action, unless made with the intent that the person concerning whom they were made should obtain credit, money or goods thereupon.

But in the case at bar, we think it is evident, from the declaration and the bill of exceptions, that the representations which the plaintiffs relied on were representations made with tie intent of inducing the plaintiffs to make a contract of insurance with the Keystone Insurance Company, and that by means of that contract the insurance company might obtain the money óf the plaintiffs, as the premium for such insurance. This fact distinguished it from Norton v. Huxley and Medbury v. Watson; and justified the ruling of the court, that the representations must be shown to have been made in writing, to maintain the plaintiffs’ action.

The second exception upon which the plaintiffs rely we think cannot be supported, because it is taken to the refusal of the judge who presided at the trial to give an instruction which was asked for by them, and there is nothing in the bill of exceptions to show any facts in the case which make such instruction necessary. It does not appear that any evidence was offered of a promise or contract in writing. The instruction given to the jury contained nothing to the contrary of that which was asked by the plaintiffs. Where the instruction? given are correct, the omission to give others specifically asked and refused cannot be a cause for granting a new trial, unless it distinctly appears that they were appropriate in the position of the cause, and necessary to its just decision. Exceptions overruled.