Fisher v. Mellen , 103 Mass. 503 ( 1870 )

Wells, J.

1. Upon the instructions given and refused, the question raised by these exceptions is, whether it was incumbent upon the plaintiff to prove that the share of stock which he was induced to take and pay for belonged to the defendant, and was sold by him to the plaintiff. As a question upon the pleadings, this cannot be necessary in order to avoid a variance. The declaration does not allege that the defendant was the owner, but only that he represented himself to be the owner. It is equally well adapted to a sale of stock of which the defendant was the owner, or of stock which he did not own, but undertook to sell as if he were the owner of it. As a matter of substance, it is immaterial. It is not necessary that it should be alleged or proved that the defendant was the owner of property which the plaintiff was induced to buy through his fraudulent representations. The gravamen of the charge is, that the plaintiff has been deceived.to his hurt; not that the defendant has gained an advantage. Stone v. Denny, 4 Met. 151, 163. Tryon v. Whitmarsh, 1 Met. 1. Medbury v. Watson, 6 Met. 246. Stiles v. White, 11 Met. 356. Pasley v. Freeman, 3 T. R. 51, and notes thereon in 2 Smith Lead. Cas. (6th Am. ed.) 157. Upon this declaration, it was only necessary to show that the defendant undertook to sell the share to the plaintiff. The third instruction prayed for was given by the court, and was sufficiently favorable to the defendant upon this branch of the case.

2. The ground upon which the plaintiff sought to recover was, that the representations of the defendant in regard to the lands were false in fact, and made as of his own knowledge; the plaintiff’s counsel stating “ that he should not claim to the jury that, as to that class of representations, the defendant had personal knowledge of the condition of the land.” This rendered the evidence that he had not such personal knowledge irrelevant. Evidence of information from others, upon the strength of which he made those representations, even if it were such as to lead him to believe in the truth of the facts which he stated, would not be a defence against such a charge as the plaintiff relied on. If, to induce the plaintiff to make the purchase, the defendant stated, as of his own knowledge, material facts susceptible of knowledge, which were false, and the plaintiff, relying upon his statements so made, was thereby induced to purchase the stock, the defendant is liable, notwithstanding proof that he was himself misinformed as to the facts. See cases above cited; and also Hazard v. Irwin, 18 Pick. 95, and Page v. Bent, 2 Met. 371. Such evidence would not disprove the fraud, which consists in representing the statements to be true of his own knowledge.

We must presume that the instructions given to the jury were adapted to the form of the issue as it would stand upon this presentation of the plaintiff’s counsel: and therefore that, in order to render a verdict against the defendant on account of his representations in regard to the land, the jury were required Vo find that these representations were made by him as of his own knowledge. In that aspect of the case, the exclusion of the testimony offered was proper. .The point is presented as one of evidence merely, and raises no question of pleading.

Exceptions overruled.