The bill alleges that in November, 1908, the that they had a surplus in the treasury, and plaintiff was induced to enter into the con- the Directors had planned to pay a dividend tract by reason of certain false representa- of ten per cent. January, 1909." tions made by Moulton as to the value of the The master also made the following findstock; that Moulton died on December 26, ings: That Moulton told the plaintiff that 1911, and the defendant Cutting has been if he would buy the stock he (Moulton) knew duly appointed executor of his estate; that the plaintiff would have a good income all the defendant Gates claims title to the real his life and would get more than ten per estate as beneficiary under the will of Moul-cent.; that Moulton told the plaintiff in subton, and that the defendant Cutting claims an interest in the real estate as such executor. stance that the property was making money; that the company was selling the bricks at a great profit and was accumulating money all the time; that the gas works were equal to paying a dividend on the whole brick plant; that a little more money was needed for more kilns to carry on the business; and that it was proposed to raise it by selling treasury stock; that a large banking house on State Street, Boston, was selling the stock rapidly; that it was going to increase in value; that a number of people on State Street were large investors in the stock; that he (Moulton) knew of these things because he was connected with the people who were in the company; that the company had a contract to build a state house in Kansas City, and had contracts with the United States, and large orders in different parts of the State of Kansas; that the bricks were being used in the streets and that there was an unlimited amount of shale and oil. Many other findings are recited in the master's report of representations made by Moulton to the plaintiff. The defendants severally demurred to the bill and an interlocutory decree has been entered overruling the demurrers. The case was sent to a master who has filed his report. The defendants filed exceptions to five findings of fact made by the master and the case is before us upon a reservation, made by a judge of the Superior Court, upon the master's report and the exceptions thereto. The following facts, among others, are found by the master: The plaintiff at the time of the hearing was apparently about seventy years of age; he had known Moulton since 1883 and respected and confided in him; from 1883 until April, 1907, they had not met; soon after the latter date the acquaintance was renewed and Moulton began to talk with the plaintiff about some valuable property situated in the State of Kansas upon which, he stated, was located a brick, oil and natural gas plant; that in the fall of 1907, and thereafter, Moulton continually talked with the plaintiff about this property and said He finds there was no evidence that the that he [Moulton] or they had a piece of company had bought out any competing busiproperty in Kansas that was going to de- ness or any other plant; that Moulton was velop into a large property; "that they had acquainted with people who were interested everything there to do with-heating system, in the property; that from the time the comthat is to say, oil wells to make heat-a su-pany began to make bricks in July, 1908, but perior quality of shale-and the plant-and a limited amount had been so manufactured the water-a good system of firing bricks or sold and that bricks enough to ensure a was right in the heart of a district where profit had not been sold; that in October, they used bricks-that they were especially 1908, the company was selling very few good bricks-that they had numerous con- bricks and had few contracts for such sale; tracts for bricks, all the time. That they that there was no available surplus in the could produce them very cheap; cost $2.00 treasury and the company was not accumuor $3.00 per thousand, and could get $12.00 lating money; that no vote had been passed or $15.00 per thousand and that some special to pay a dividend of ten per cent. in Janubrick were bringing more. That the City of ary, 1909, and the company never had suffiKansas was going to pave its streets or side-cient funds to pay such a dividend; that at walks with this vitrified brick. That he the time the stock was transferred to the heard the company were getting more money and things were prospering right. That if they had more kilns, they would have a better chance, an unlimited chance of developing this property. That he would not deceive the plaintiff, and that the plaintiff was not running chances with him; that he knew he had a good piece of property; that Mr. E. F. Day had been there in charge of the works, and that he would tell as he, Moulton, had represented; that they had bought a large plant there, making similar bricks, and had increased their business; that the company was turning out well and he knew it would; that he wanted the plaintiff interested; that we could make a lot of money out of it; plaintiff, the company was doing business on borrowed capital and did not have sufficient assets to pay its debts; that the brick business at that time could not be carried on profitably; that the supply of oil and gas was not unlimited and the prospects of success were not good; that at that time (October, 1908) the stock of the company had no market value, but only a prospective value which subsequently was found to be worthless; that the gas plant was not paying a dividend on the whole plant; that the company was not earning enough to pay its ordinary current expenses; that there was no evidence that any large banking concern on State Street, in Boston, had sold the stock or that people on State Street had invested, dividend in January, 1909, as had been promin the stock of the company; and that there ised, he asked Moulton when it would be was no evidence that the company had large orders for bricks in different parts of Kansas or that there were ten or twelve oil wells on the property. The master also finds that, in the presence of Moulton certain statements were made to the plaintiff by Day, and by one Averill who was a director of the company. These statements were in corroboration of those which Moulton had previously made to the plaintiff; that during the negotiations between the plaintiff and Moulton, which extended over a period of at least a year, both Day and Averill took an active part. paid. Moulton told him "not to worry as it would come right along, that the money was there, that they were building new kilns and that the property was all right." The plaintiff visited the property in Kansas in September, 1909, and while not satisfied with the conditions in which he found it, did not at that time make any effort to obtain a return of the real estate which he had exchanged for the stock; but several times after such visit and before the death of Moulton in December, 1911, he spoke to the latter about the stock and complained that he had not received any dividends and asked Moulton to return to him the property and offered to return the twenty-five thousand shares of stock. The master further finds that the plaintiff was induced by Moulton to believe that he was purchasing treasury stock and that the money so paid by him was to be used by the [1] The conduct of the plaintiff after he company; but that in fact, the greater part, had purchased the stock did not amount to if not all, of the stock transferred to him an adoption or affirmation of the contract. was stock of Day; that the bargain was No such contention appears to have ever completed in October, 1908, and the stock was been made by Moulton who repeatedly promtransferred on or about November 19, 1908. ised to reconvey the property, and the masIn return for the conveyance of the real ter finds that the plaintiff relied upon these estate which was made to Moulton and Day, promises. Thomson v. Pentecost, 206 Mass. the plaintiff received twenty-five thousand 505, 92 N. E. 1021; Anastas v. Koliopoulos, shares of stock of the company of the par 222 Mass. 267, 110 N. E. 292. value of $1 each, of which twenty thousand [2] The purchase by the plaintiff of bonds shares were placed in the name of the plain-to the extent of $5,000 secured by a mortgage tiff, and five thousand shares were carried in the name of his wife. It appears that Day subsequently conveyed his interest in the real estate to Moulton in whose name the title stood at the date of his death. upon the property of the company in January, 1910, was not an affirmation or ratification of the contract for the purchase of the stock. It is found that the purpose of the loan was to pay off the indebtedness of the company, to secure the stockholders, and to furnish funds to carry on the business. It appears that the plan did not succeed, but that in March, 1910, the business was at a standstill and so continued until a receiver was appointed in June, 1911. [3] The plaintiff was under no obligation to return or offer to return the bonds held by him as a condition precedent to the bringing of the bill. The purchase of the bonds was an entirely independent transaction in no way connected with the purchase of the stock. The Master finds that the plaintiff relying upon the foregoing representations was de ceived thereby and was induced to and did convey to the said Moulton and Day his property as aforesaid, which was in value far in excess of any probable or possible value of the stock which he and his wife received, taking into account the existing and continuing conditions and circumstances herein set forth of the Sherbrooke Gas and Vitrified Brick Company; and that, at the time he received the stock, it was of no value. It is plain upon these findings that the plaintiff was induced to part with his prop- The finding was warranted that it did not erty as the result of the deception and false appear the shares had any market value in representations of Moulton. Many of these October, 1908. The facts reported by the representations were assertions of material | Master show that the shares had neither marfacts as distinguished from expressions of ket value nor actual value, either in October, opinion or mere seller's or promoter's talk. Whitney v. Lynch, 222 Mass. 112, 109 N. E. 826; Noyes v. Meharry, 213 Mass. 598, 100 N. E. 1090; Ginn v. Almy, 212 Mass. 499, 99 N. E. 276; Gurney v. Tenney, 197 Mass. 547, 84 N. E. 428. 1908, or in November, 1908, when the plaintiff received the stock. It follows that the defendants' first and fourth exceptions must be overruled. The second exception, to the finding that "the plaintiff was induced to believe that in The master further found among other this transaction he was purchasing treasury matters that the plaintiff is entitled to have stock and that his money was to be used for the property in Winchester reconveyed to and by the company," and the third excephim, and in addition thereto should receive tion, to the finding "that many of these repas damages the sum of one thousand dollars, resentations were false, that the plaintiff unless as matter of law the following facts relying thereon was deceived thereby and prevent recovery. was induced to and did convey to said Moul tained. The findings were fully warranted | him, he repeatedly requested Moulton to reif the master believed the testimony of the convey the real estate, and that Moulton plaintiff. never denied the plaintiff's right to such reconveyance but often promised to return the property. There was evidence and the master finds that such promises were so made up to a short time before Moulton's death and that the plaintiff at all times relied upon these promises and had reason to believe that Moulton would return the property. The fifth exception, to the finding "that the plaintiff is entitled to have said property in Winchester reconveyed to him and in addition thereto should receive as damages the sum of $1,000," must be overruled for the reasons already stated, unless as matter of law the plaintiff is precluded from recovery on the ground that he has no remedy in equity, or for the reason that his claim is barred by laches. The defendants contend that this case was originally commenced by an action at law which, after demurrer, was, by amendment, changed into a bill in equity; and that the cause of action alleged in the bill did not survive the death of the defendant Cutting's intestate. R. L. c. 173, § 48. The R. L. c. 173, § 121, provides that: "The cause of action shall be considered to be the same for which the action was brought, if the court finds that it is the cause of action relied on by the plaintiff when the action was commenced, however the same may be mis-described; and the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action." [4, 5] The allowance of the amendment involved a finding of fact and is made conclusive of the identity of the demand set out in the bill with that which was described in the action as originally brought. Upon this record, the allowance of the amendment is conclusive and binding upon the parties. The case is to be treated as if originally commenced by a bill in equity. Mann v. Brewer, 7 Allen, 202; Batchelder v. Pierce, 170 Mass. 260, 49 N. E. 310. It is true, as contended by the defendants, that an action at common law or under the provisions of R. L. c. 171, § 1, will not survive for a fraud practiced upon a party. Rockwell v. Furness, 215 Mass. 557, 102 N. E. 914; Cheney V. Gleason, 125 Mass. 166, 174; Leggate v. Moulton, 115 Mass. 552. [6, 7] The rule as to common law actions has no application to a case of this kind which is a suit in equity brought to rescind a contract alleged to have been procured by fraud and to recover specific property. That such a suit may be maintained after the death of the wrongdoer is well established. Batty v. Greene, 206 Mass. 561, 92 N. E. 715, 138 Am. St. Rep. 407; Parker v. Simpson, 180 Mass. 334, 343, 62 N. E. 401; Perry on Trusts (5th Ed.) § 166. The filing of the bill and service thereof upon the defendant is sufficient evidence of the election of the plaintiff to rescind. Parker v. Simpson, ubi supra. The defence of laches is open to the defendants, at least under the fifth exception to the master's report. The evidence recited in connection with the master's findings shows that soon after the plaintiff learned of the fraud that had been practiced upon [8] It does not appear that the defendants have suffered any injury by reason of the delay or that the failure of the plaintiff sooner to assert his rights has shown him to be guilty of laches. Stewart v. Finkelstone, 206 Mass. 28, 92 N. E. 37, 28 L. R. A. (N. S.) 634, 138 Am. St. Rep. 370; O'Shea v. Vaughn, 201 Mass. 412, 87 N. E. 616; Daly v. Foss, 199 Mass. 407, 85 N. E. 94. A decree is to be entered confirming the Interlocutory decree overruling the demurrer, and overruling the exceptions to the master's report and confirming that report; also, directing that the contract be rescinded and that the defendants be ordered to reconvey the property to the plaintiff, and pay him the sum of $1000 as damages, together with interest from the date of the filing of the master's report, with costs of suit. (225 Mass. 589) CITY OF SOMERVILLE v. COMMON- (Supreme Judicial Court of Massachusetts. 1. PAUPERS 19(9) SETTLEMENT STATUTES. TENTION. 19(9).] 181(1)-CONSTRUCTION IN The intention of the Legislature is to be determined from the language used in the statute. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 259; Dec. Dig. 181(1).] 3. APPEAL AND ERROR ~673(2)—QUESTIONS PRESENTED FOR REVIEW-REPORT. On a report in an action by a city to recover from the commonwealth the amount ex pended as aid to certain individuals, which stated that petitioner contended that the aid furnished prevented the husband and father of those individuals from acquiring a settlement within the city, while the respondent contended acquired a settlement through their husband that it did not, and that if the persons aided and father petitioner is not entitled to recover, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes if they did not petitioner can recover, the commonwealth cannot raise the contentions that the aid was furnished without the knowledge of the husband and father, and therefore did not prevent his acquiring a settlement, or that there could be no recovery because the expenses had not been approved by the state board as required by Rev. Laws, c. 81, § 21, as amended by St. 1903, c. 355, and St. 1912, c. 331. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 2873; Dec. Dig. 673 (2).] Report from Superior Court, Suffolk County; Marcus Morton, Judge. Petition by the City of Somerville against the Commonwealth of Massachusetts to recover for aid furnished to paupers. On report to the Supreme Judicial Court after findings for defendant. Judgment entered for petitioner. Frank W. Kaan, of Boston, for petitioner. Henry C. Attwill, Atty. Gen., and H. Ware Barnum, Asst. Atty. Gen., for the Commonwealth. CROSBY, J. This is a petition to recover for aid furnished under the provisions of R. L. c. 81, § 21, as amended by St. 1903, c. 355, § 1, and as further amended by St. 1912, c. 331, § 1, to the wife and minor children of Michael J. Burke. The case comes before them first on April 14, 1913, and thereafter from time to time as set forth in the account annexed to the petition. The sums of money charged in said account for said aid are reasonable. The overseers of the poor in furnishing said aid considered it for the public interest and gave immediate notice in writing thereof to the State Board of Charity. A detailed statement of the expenses sought to be recovered herein was duly rendered to said State Board of Charity, but it refused to approve and never has approved the same. Payment thereof was duly demanded and payment was refused.' [1] From the foregoing recital, it would seem plain that Burke, having resided in Somerville for five consecutive years, and having paid all taxes assessed to him during four years of that time, acquired a settlement in that city, unless the aid furnished to his wife and children, above referred to, prevented him from acquiring such settlement. R. L. c. 80, § 1. It is equally plain that the aid furnished the wife and children in April 1913, and before Burke had resided in Somerville for five consecutive years, prevented his acquiring a settlement there, unless it was unaffected by reason of St. 1907, c. 386, § 2. Charlestown v. Groveland, 15 Gray, 15; Woodward v. Worcester, 15 Gray, 19, note; Taunton v. Middleborough, 12 Metc. 35. It is the contention of the Commonwealth that by reason of the provisions of St. 1902, this court on a report made by a judge of the c. 213, § 2, as amended by St. 1907, c. 386, Superior Court, who ruled that the aid fur-§ 2, the furnishing of such aid did not affect nished the wife and children did not pre- or prevent the acquiring of such settlement. vent the acquiring of a settlement in Somer-The statute in question is as follows: ville by Michael J. Burke. The judge found that the wife and children acquired such settlement, and also found for the defendant. It is recited in the report that: "No person for whose care and maintenance a city or town or the Commonwealth has incurred expense in consequence of smallpox, scarlet fever, diphtheria, tuberculosis, dog bite requirgerous to the public health shall be deemed to be a pauper by reason of such expenditure." "The question to be determined is the set-ing anti-rabic treatment, or other disease dan tlement of the wife and children. If they derived a settlement in Somerville through Michael J. Burke, the petitioner is not entitled to recover. If they did not derive such settlement, the petitioner is entitled to recover." From the agreed statement of facts, it appears that: [2] In providing for the isolation and treatment of persons afflicted with diseases dangerous to the public health, it was doubtless the primary purpose and intention of the Legislature to protect as far as possible "Michael J. Burke, mentioned in the petition, the people at large, by furnishing scientific moved with his wife and minor child to Somerville, September 14, 1908. Thereafter two oth- and skillful treatment and special care to er children were born. On September 14, 1908, prevent the spread of such diseases. It probsaid Burke had no settlement in this Common-ably was believed that the removal of perwealth. He continued to live in Somerville thereafter, but because of his illness with tuberculosis which is a disease dangerous to the public health, he went to the Somerville Tuberculosis Camp, which is maintained by the City of Somerville, on April 10, 1913, and remained there until July 31, 1913. On the latter date said Burke went to the Rutland State Sanatorium for consumptives, in Rutland, Massachusetts, and remained there as an inmate until February 5, 1915, on which date he returned to the Somerville Tuberculosis Camp and remained there until April 3, 1915, on which date he returned to his home in Somerville and remained there until his death, June 12, 1915. "Said Burke was assessed poll taxes in Somerville for the years 1909, 1910, 1911, 1912 and 1913, and paid said taxes for all of said years except 1913. He was not assessed any other taxes of any sort whatsoever in any of said sons suffering from a disease described in the statute from their homes and their treatment elsewhere, would involve an expense which, in some cases, the persons so treated would be unable to pay. The statute in question was passed to prevent such persons so cared for and maintained, from becoming paupers. The respondent contends that the statute includes aid furnished to the wife and children of Burke, and that such aid is an expense incurred "in consequence" of tuberculosis. The question is, what was the intention of the Legislature? That intention is to be determined from the language used in the statute. It is manifest that the aid furnished to the wife and children was not an expense primarily and directly incurred in consequence of tuberculosis. Such aid could be said to have been so furnished only by reason of the fact that Burke, upon whom rested the legal duty to support his family, had become incapacitated from providing such support because on account of the nature of his disease, he became an inmate of the Somerville Tuberculosis Camp and the Rutland State Sanatorium. If this contention can be maintained, it must also be assumed that if he had not been cared for at the camp and the sanatorium he not only would have been willing, but able to support his family. It is to be noted that the statute does not in terms include aid furnished to the family of a person who suffers from a disease described therein. The fact that ordinarily a man is under a legal as well as a moral obligation to support his wife and children, and that therefore aid to them is in a legal sense aid to him, does not indicate that the Legislature intended that the statute should include aid furnished to his wife and children under such circum If it had been the intention of the Legislature to provide that the furnishing of aid to those legally dependent upon a person for whose care expense had been incurred under the statute, so that such person should not be deemed a pauper, such intention should appear in plain and unmistakable terms. See St. 1911, c. 669, § 3, as amended by St. 1913, c. 266, § 1. This court has no authority to read into the statute language which the Legislature has not seen fit to embody therein. "The petitioner contends that the aid furnished them prevented Michael J. Burke from tends that under the provisions of Acts of acquiring a settlement. The respondent con1907, c. 386, § 2, the aid did not prevent the acquiring of such settlement." From this recital, it is plain that it was understood the rights of the parties are to be determined solely by the question whether Burke was prevented from gaining a settlement by reason of the aid furnished his wife and children, and that this question depended upon the correct construction of the statute; moreover, the report recites that: "If they [the wife and children] derived a settlement in Somerville through Michael J. Burke, the petitioner is not entitled to recover. If they did not derive such settlement, the petitioner is entitled to recover.' It is clear that the question whether the approval by the State Board of Charity, of the expenses incurred, is required in order that the petitioner may recover, is not raised upon this record. It appears from the agreed statement of facts that such expenses never have been approved by the board as required by the statute, R. L. c. 81, § 21, as amended by St. 1903, c. 355, and St. 1912, c. 331. If that question was before us, we do not mean to intimate that the board could, without reason, arbitrarily withhold such approval. It follows that judgment should be entered for the petitioner for the amount expended with interest from the date of the petition. So ordered. CHATTEL MORTGAGES A mortgage of lessee's interest in a five-year lease was not a mortgage of "personal property," within the meaning of Rev. Laws, c. 198, § 1, requiring mortgages of personal property, to be valid against any person other than the The aid was furnished by the overseers parties, to be recorded on the record of the city or town" of the mortgagor's residence. of the poor in the manner allowed and re[Ed. Note.-For other cases, see Chattel Mortquired by the statutes relating to paupers.gages, Cent. Dig. §§ 153-160; Dec. Dig. 85. It was not furnished by the city in the per- For other definitions, see Words and Phrases, formance of any duty placed upon it relat- First and Second Series, Personal Property.] ing to the care of Burke or for the purpose of protecting the health of the community ty; Jabez Fox, Judge. from the diseases enumerated in St. 1907, c. 386, § 2. Report from Superior Court, Suffolk Coun Suit by Barnet Freedman against Hyman Bloomberg and another. From decree for plaintiff, defendants appeal, and the case is reported. Affirmed. [3] It is argued by the respondent that there is nothing to show that Burke knew that aid had been furnished to his wife while he was sick at the Somerville Tuberculosis Camp, and that therefore the furnishing of such aid did not prevent him from acquiring of Boston, for defendants. a settlement. Berkeley v. Taunton, 19 Pick. 480; Wareham v. Milford, 105 Mass. 293. This question is not open to the respondent in view of the language of the report which recites that: Frank L. Simpson, Arthur P. Teele, and Ralph F. Albert, all of Boston, for plaintiff. J. J. Cummings and Elisha Greenhood, both DE COURCY, J. The trial judge found the following facts: The defendant Bloomberg, was lessee of a building in Brockton under a written lease given in 1911, for a term of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |