Franklin v. Greene , 84 Mass. 519 ( 1861 )

Chapman, J..

Upon an issue framed by order of court, a jury has found that the note of $821 was obtained by the defendants by fraud and misrepresentation. The defendants contend that the plaintiff is entitled to no relief, because the whole evidence, notwithstanding the verdict, shows that no fraud was practised by which he has suffered injury or damage.

But in this commonwealth the right of trial by jury is secured by the constitution. In suits in equity the issues do not grow out of the pleadings, as in suits at law, but are framed by the court; yet in framing the issues the court will have regard to the constitutional provision, and will allow the parties to submit to a jury all such material facts as are proper to be decided by them ; and when a verdict is rendered, and not set aside for good cause shown, it will be regarded as settling the facts in issue conclusively. .

The defendants contend further that the plaintiff is not entitled to relief, because they allege that he did not offer to rescind the contract after the facts constituting the fraud and misrepresentation had become known to him ; but proceeded to take to his own use the property conveyed to' him by the defendants. But the court are of opinion that this position is not sustained by the evidence. After the alleged communication was made to the plaintiff, Greene assured him that the mortgage was good, and everything was as he sold it to the plaintiff, and was perfectly secure. The plaintiff had a right as against the de fend ants to rely upon this statement. And it does not appear that he was then possessed of any proof that would have justified him in rescinding the contract. Nor does it appear that, after knowledge of the facts, he affirmed the contract and agreed to pay the note.

The defendants contend that if the plaintiff is entitled to re lief, it does not extend to the whole note, but only to a deduction of the difference, if any, between the value of what was paid and what was received. This point relates to 125 shares of stock in the New England Mining and Quarrying Company, which the plaintiff sold to defendants, as a part of the contract, and the price of which was estimated at $875. The evidence tends to show that it had no fixed market value, and that it was worth much less than that sum. But the plaintiff practised no fraud. Both parties had equal opportunities to judge of its value, and it does not appear to have been an unconscionable bargain in this respect. Courts never interfere with prices fixed by parties under such circumstances.

The defendants contend that if the sale of the armory building by the plaintiff had been properly and judiciously managed, it would have brought a greater price ; and that the loss occasioned by the want of such management should fall upon the plaintiff. But it appears that, as assignee of the mortgage sold to him by the defendants, the plaintiff sold the property under a power of sale contained in the mortgage; and that he did no more than to exercise the power thus given, openly, fairly, and in compliance with its terms. He was under no obligation to wait till the market should improve, and +he court ought not to impose an obligation upon him that the parties did not see fit to impose by their contract.

The defendants contend that he is not entitled to relief without first exhausting his remedies on the note against the makers. But if he had taken such a course he would have exposed himself to the first objection taken by defendants, viz: that he had affirmed the contract after obtaining knowledge of the fraud. The right to rescind the contract, and tender a return of the note, is too well settled to require the citation of authorities.

The defendants contend that the plaintiff is not entitled to relief, because they say he has lessened the value of the note of the Providence Artillery Company as against the makers. But the evidence does not sustain this position. All he has done is to sell the property which was mortgaged to secure the note, so far as he had title thereto. The agreement of the purchaser with the makers was not his act, and he is not responsible for it.

He is therefore entitled to the relief he prays for, to wit:

1. That the note which was obtained from him by fraud be delivered up to him; and the mortgage given to secure the same be discharged; and that the injunction against the sale be made perpetual.

2. To recover of the defendants the balance due to him on the rescission of the contract.

It is objected that the relief cannot be extended thus far, because the specific prayer for relief only asks that the note of $821 and the mortgage be cancelled. But there is also a general prayer for relief; and under that prayer all relief may be decreed that the nature of the case requires.