Dole v. Wooldredge , 142 Mass. 161 ( 1886 )

C- Allen, J.

The defendant’s counsel has made an excellent argument in this case, which has received our full consideration ; but we have come to the conclusion that the' decision of the justice before whom the case was heard must stand.

Assuming, without deciding, that the defendant might have insisted upon a trial by jury as a matter of constitutional right, if his demand therefor had been seasonably made, we are of opinion that he waived this right. That such right may be waived is clear. Parker v. Nickerson, 187 Mass. 487, 492. The cause was at issue on October 2, 1883, and under the 28th Chancery Rule then in force, (new rules, No. 27,) it was to be considered as ready for a hearing one month later. By the rules prescribing the order of business in Suffolk County, a weekly list of matters to be heard in equity before a single justice was made up for Tuesday of each week, on which cases might be set down, either by motion to the justice at his first coming in on any previous day, or by agreement of counsel and notice to the clerk of the court. These rules were made in pursuance of the provision of the Gen. Sts. c. 113, § 26, (Pub. Sts. c. 151, § 33,) allowing the court to make rules regulating the practice and proceedings of the court in matters of equity, so as to discourage delays and expedite the decision of causes. The cause being thus ready for a hearing, two courses were open to either party wishing to move in the matter. One was to proceed in the usual manner in equity causes, and apply for a hearing before a single justice, unless it was desired to send the case to a master. The other course was, under the Pub. Sts. c. 151, § 27, to request the court to frame issues of fact to be tried by a jury. In order to avail himself of the right of a trial by jury, if he had such right, it was necessary for the defendant to make an application to the court under this statute. Having this election of methods of trial, the defendant, in December, 1883, had the cause set down for a hearing before a single justice. This, under the rule, was no doubt done on a day previous to the day fixed for the hearing. It was necessary to notify the other side that the cause had been thus set down. Parties are to have time to make needful preparations for trial. This course of action was inconsistent with an intention or expectation on the part of the defendant to have a jury trial. It was a formal and significant act, showing an election by him to have the cause tried before a single justice, without a jury. It was not done through any misleading, or surprise, or misapprehension, or inadvertence. Indeed, the testimony of the clerk of the court shows that the cause was set down for a hearing twice in December, 1883, and again on February 20, 1884; though he does not testify, and the record does not show, that at either of these times it was so set down by. the defendant. The finding of the justice is, that in December, 1883, the defendant had the cause set down for a hearing upon the merits before a single justice of this court. We cannot regard this otherwise than as showing an intention on the part of the defendant at that time not to ask for a trial by jury. He himself elected the other method.

It is then to be considered whether this state of things was changed by anything that occurred afterwards. The judge finds, that the defendant insisted upon a hearing, unless some agreement could be made whereby the attachment of real property made under the writ should be postponed to certain conveyances which he wished to make; that an agreement was ultimately made to this effect, and the defendant did not then insist upon the hearing. In other words, the hearing was then postponed by agreement. But such postponement, under such agreement, did not of itself vary the legal effect of the defendant’s act in setting the cause down for a hearing. Cases are always liable to be postponed by agreement, or by order of the justice for good cause shown. If the defendant wished to restore himself to the right of having a trial by jury, which he had waived, he should have made that a part of the stipulation. He did not do so. There is nothing to show that he then understood or wished that the case should be tried before a jury, or that he should be reinstated in his right to such trial.

Nor did the subsequent amendment to the bill have that effect. This was filed and allowed on February 21, 1884. No new matter of substance is charged in the amended bill against the sole defendant now before us. The original bill alleged that the defendant, conspiring and arranging with Robinson, to cheat and defraud the plaintiffs, agreed with Robinson that they should call the price of the mine §200,000, and that the statements made to the plaintiffs by Robinson were made in pursuance of such arrangement and conspiracy; that the price was much less, and that the defendant paid and Robinson received much less. The answer to the bill is very general; but it denies that the defendant made any false statements or representations to the plaintiffs, or that he conspired and arranged with Robinson to cheat and defraud the plaintiffs. The main object of the amendment was to make Robinson a party to the suit, and to charge him also with conspiracy and fraud. He never was served with process, never appeared, and is not before us. The defendant filed a new answer to the amended bill, but not till after he had filed a separate request for a jury trial. The new answer is in the same words as the original answer, except in referring to the bill as “ the amended bill,” and in adding a demand for a trial by jury. It is not contended by the defendant that his situation was changed by the amendment in any respect, except by its making Robinson a party. He says that, before the amendment, Robinson’s testimony could be obtained only by deposition, or by his voluntary appearance as a witness; whereas, if Robinson should voluntarily submit himself to the jurisdiction of the court, — an act over which the defendant Wooldredge had no control, — his testimony could be readily taken by interrogatories; and, with this contingency in view, the defendant might well say that he desired such testimony to be presented to a jury-

The answer to this is twofold. In the first place, Robinson never in fact appeared as a party, and so the position of the defendant Wooldredge remained unchanged. Besides, if Robinson had appeared, answers made by him to interrogatories propounded under the statute would not be competent to affect Wooldredge, the latter having no opportunity to cross-examine him. The decision in Stetson v. Wolcott, 15 Gray, 545, only held that interrogatories may be addressed to one of several defendants, without including all the defendants, in an action of contract; and that his answers thereto are admissible in evidence for the plaintiff. The objection there raised was, that the questions should have been proposed to all the defendants, and their joint answers taken. Statements made by a conspirator long after the completion of the fraudulent enterprise, which are merely narratives of past occurrences, are not competent to affect others. 1 Greenl. Ev. § 111. And the fact that such statements might be obtained by means of interrogatories under the practice act would not change the general rule of law.

The question remains, whether, as a matter of judicial discretion, the judge erred in refusing to frame issues for a jury. An important element in the determination of this is the time when the application to the court was first made. This was on September 23, 1884, twenty-nine months after the filing of the bill, almost twelve months after the parties were at issue, and more than nine months after the defendant had set down the cause for a hearing before a single justice. No time has been fixed by any rule or general order of court within which a party must request the court to frame issues for a jury in an equity cause. But the recent policy of the legislation in this Commonwealth has been, that cases at law as well as in equity should be tried before the court without a jury, unless an early demand for a trial by jury is made. By the St. of 1874, <?. 248, a party desiring a trial by jury in a civil action in this court or in the Superior Court must file a notice to that effect within such time after the parties are at issue as the court may by general or special orders direct. By the St. of 1875, c. 212, such notice might be filed before the parties were at issue, as well as after. Such is the law now. Pub. Sts. c. 167, § 69. Ten days after the filing of the answer or plea, in this court, and after the parties are and are required to be at issue, in the Superior Court, is the latest time allowed by the rules for the filing of such notice, unless there is a special order extending the time. See Rule 8 of this court, and Rule 16 of the Superior Court. After the defendant’s long delay, in the present case, and after his own act of setting the case down for a hearing before a single justice, we cannot say that, as matter of judicial discretion, issues for a jury ought to have been framed.

We have examined all the cases cited for the defendant, and find none which in our opinion should lead us to a different result. The decisions in New York rested upon a particular provision of the Constitution of that State, prescribing how the right of trial by jury may be waived; those in Louisiana, upon a particular provision in the code of that State; and that in Tennessee, upon an express statute. Decisions upon such points, made in jurisdictions where the systems and methods of procedure may be different from our own, cannot be of controlling weight with us.

The defendant took various exceptions to the admission of evidence at the hearing.

In the first place, he insists that the court erred in admitting evidence of declarations of Robinson before there had been evidence to establish a conspiracy. These declarations were in furtherance of the object of the alleged conspiracy. The justice before whom the trial was had stated that there was some evidence of a conspiracy already, and an offer to produce further evidence; and that it was a mere question of the order of proof. In this there was no error. Burke v. Miller, 7 Cush. 547. 1 Greenl. Ev. § 111.

The defendant then objects that the court went too far in allowing Dole, on his reexamination as a witness for the plaintiffs, to testify to what was said in a certain interview between himself and Sinclair (two of the plaintiffs) and Robinson, at the Astor House in New York. The situation was as follows: Robinson gave two depositions to be used in the case. The first was given to the defendant; the second, to the plaintiffs. In the first, he testified that he received $195,000 for the mine; in the second, that he received $100,000. The interview in question was after the first deposition, and before the second had been given. On his cross-examination by the defendant, Dole was asked if he had an interview with Robinson, when and where and how long it was, if they met by appointment, who were present, if he brought a deposition home from New York, if he knew who went out to Palmyra to take the last deposition of Robinson, if he employed any one to go there, or if he knew who did. The cross-examination then proceeded as follows :

Q. You were present at another interview ?

A. A few days afterwards.

Q. Where you and Robinson were present, and Sinclair ?

A. Yes, sir.

Q. At which time Robinson told you and Sinclair that he had given his deposition ?

A. Yes, sir.

Q. State all he said about it on that point.

A. I asked him if he was willing to come to Boston and testify in this case, and state the facts, or if he was willing to give a deposition if we wanted it. He said, “I have already given an affidavit,” was the way he expressed it, “ and it has been sent to my counsel in Boston, or has been filed in court there.” I said, “ I don’t think that is so; I have never heard of any deposition, I have never seen any, and I don’t think it can be possible that your deposition has been filed in court in Boston up to this time.” He said it certainly had; and I insisted that it certainly had not, to my knowledge.

Q. And Mr. Sinclair was there ?

A. Yes, sir.

Q. And heard that ?

A. I think he heard it. It was said in his presence and mine.

Q. What did Sinclair say?

A. He said, as I did, that the deposition had not been filed ; at least, he had n’t access to it; and I.think he told Mr. Robinson that his counsel was not obliged to file it, and probably never would.

This fairly opened all that was said in that interview with Robinson on the subject of the deposition he had given, or which he was asked to give; whether Robinson said he would testify for the plaintiffs or not; what testimony he said he would or could give for the plaintiffs; and what requests he said had been made to him not to testify further, or not to come to Massachusetts. These in general were the subjects of the reexamination; they were not matters new in themselves, or unconnected with the statements elicited on cross-examination, or remote and distinct from that which was the subject of inquiry and investigation on the part of the defendant in cross-examination, but they have a natural and close connection with it. Commonwealth v. Keyes, 11 Gray, 323. Straw v. Greene, 14 Allen, 206. Prince v. Samo, 7 A. & E. 627. 1 Greenl. Ev. § 467.

The defendant’s objection that the witness Chester should not have been allowed, on his reexamination, to testify to the conversation in an interview between himself and Robin son and the plaintiff Sinclair at the Windsor Hotel in New- York, rests on the same grounds as that which we have just considered. Sinclair had already testified to the whole conversation. Chester, on his cross-examination by the defendant, was asked as to certain portions of this conversation, including various things said to Robinson by himself and by Sinclair. All the matters to which he was allowed to testify in his re-direct examination were admitted as portions of the same conversation, and not upon remote or distinct subjects.

The defendant objected to the admission of Robinson’s second deposition, on the ground that several important and material interrogatories were omitted by mistake of the commissioner, and were not put to the witness at all. It appears that the plaintiffs filed a list of interrogatories to Robinson, to be annexed to the commission; that the defendant objected to each and every one, both for form and substance, and also waived the cross-examinatian ; that the plaintiffs then filed certain additional interrogatories ; that the defendant objected to each and every one of these, both for form and substance ; and that no cross-interrogatories were put. In taking the deposition, no answers were given to any of the additional interrogatories. Under these circumstances, the defendant, having thus specially objected to all of these interrogatories, cannot now be heard to object that they were not answered.

The defendant further contends that the whole scheme of the enterprise, as alleged in the bill, was a fraud upon the public, illegal, and against public policy, and that the plaintiffs are entitled to no relief in equity, even if they were defrauded in such an undertaking. We do not, however, find any averments in the bill showing that any fraud upon the public was contemplated ; nor do we see any occasion to set aside the finding that there was not proof of any illegal purpose in the purchase, such as would prevent the plaintiffs from recovering from the defendant the money obtained from them by his fraud.

The defendant objects that, in respect to one quarter part of the mine, which it was originally contemplated that Robinson should retain, but which was finally included in the purchase from him, and for which the plaintiffs paid $48,750 to the defendant, the relation between himself and the plaintiffs was that of vendor and vendee, and that false representations made by a vendor as to the price which he paid for property do not constitute such a fraud as a court of equity will relieve against. But, on the evidence, we do not think this relation existed between the parties. On the other hand, the evidence is satisfactory to show that he assumed to act for the plaintiffs in the matter, and treated the supposed purchase and payment by him as having been made for them, and gave them the option so to consider it until their return to Boston. The whole dealing between the parties was on this basis; and, when the plaintiffs finally paid the money to the defendant, it was as an adoption of his supposed act as an act of agency for them, and not as a purchase from a vendor.

The defendant finally contends that the evidence did not warrant the findings of the justice in relation to the alleged conspiracy between the defendant and Robinson, and to the amount of money paid for the mine. But an examination of the evidence shows that the findings were well supported.

Decree for the plaintiffs affirmed.