(146 N.E.) L. A. Mayberry, of Boston, for defendant. Many of the assertions made by the defend- A. K. Reading, Dist. Atty., R. T. Bushnell, ant the jury could have found were inten- First Asst. Dist. Atty., and Arnold Leonard, tionally false and misleading. On this evi- Asst. Dist. Atty., all of Boston, for the Comdence, in connection with the fact that the monwealth. jury could refuse to believe the explanation given by the defendant as a reason for his being at this particular place, at this early hour of the morning, in the presence of his companion, with a large part of the stolen property in their automobile, it could have been found that the defendant had knowledge that the felony was committed by Del Grosso, and that the defendant was in this place, expecting the arrival of the Packard car, and was aiding and assisting the principal to avoid detention and arrest. The request for a directed verdict and motion to set aside the verdict were denied properly. Exceptions overruled. COMMONWEALTH v. LEVENSON. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 8, 1925.) I. False pretenses 51-In prosecution for larceny of money by false pretenses, evidence held to make jury question. In prosecution of attorney at law for larceny in obtaining by false pretenses sum of money from client, for whom he was to make restitution to persons injured by thefts, evidence held to make question for jury as to whether he represented that injured persons demanded larger sum than had been anticipated, and whether this was representation of fact. 2. Criminal law 814 (3)-Instruction not resting on evidence rightly refused. Where commonwealth's evidence was that defendant obtained money by representing that it was needed to make restitution for client's thefts, and defendant's that he made no representations, defendant's prayer that, if he made representations only for purpose of getting money due him, and not to obtain money not due him, he should be found not guilty, was rightly refused. RUGG, C. J. The defendant was tried upon an indictment charging larceny, in that: "He did, with intent to defraud, obtain by false pretenses certain divers sums of money of the value of more than $100 of the property of Ernest Linegar." [1] There was evidence tending to show that the defendant, then a member of the bar, was retained by one Hughes and one Linegar, to defend them; each being under indictment for receiving stolen goods. Hughes testified that he made an arrangement with the defendant whereby he was to pay the latter $4,000, in return for which the defendant guaranteed with respect to the indictment that "nothing will happen; the worst will be probation"; that it was understood that out of this sum the defendant was to pay whatever might be necessary in way of restitution to the persons injured by the thefts and keep the rest as his own for services; that he paid the defendant $3,800, leaving a balance on March 26, 1921, of $200. Linegar testified that he made an arrangement with the defendant whereby he was to pay the latter $500 for defending him, a part of which was to be used for making restitution to those injured by the thefts, and the balance, was to be kept by the defendant as his own for his services, and that prior to March 26, 1921, he had paid to the defendthe courthouse and the defendant, after conant $500. On that date the three were at ference with an assistant to the district attorney and an attorney representing those from whom the goods received by Hughes and Linegar had been stolen, told both Hughes and Linegar that more money was needed, and then told Linegar that $200 more must be paid for restitution and that Line 3. Criminal law 1134 (3)-Request inappo- gar made that payment to the defendant. site to record not determined. There was further ample evidence to the effect that the statement that $200 more was needed by way of restitution was wholly false and that the defendant paid in settle450-Evidence calling for ment by way of restitution at that time only witness' opinion rightly refused. Where request was inapposite to record, it is unnecessary to determine whether it was sound in law. 4. Criminal law Evidence which called for opinion of witness as to law, in light of inferences to be drawn from evidence, was rightly refused. Exceptions from Superior Criminal Court, Middlesex County; Hammond, Judge. Harry E. Levenson was convicted of larceny in obtaining by false pretenses certain money of value of more than $100, and he excepts. Exceptions overruled. $950, and subsequently only $140 more, and that these sums were all the money that was thus paid. The testimony of the defendant in substance was that Hughes agreed to pay him $4,000 and Linegar $500; that he at the time made full disclosure of his payments by way of restitution; that he made no statement to the effect that $200 additional was needed for restitution, and that he simply asked Linegar for $200, which was paid to him on request, and that that payment com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The request for the direction of a verdict in favor of the defendant upon this state of the evidence was denied rightly. The false pretense which induced the payment might well have been found on all the evidence to be that a larger sum had been then and there demanded in restitution by the attor ney representing the persons from whom the goods had been stolen than had been anticipated or foreseen when the contract as to payments to the defendant had been made. It might have been found to be, not a promissory representation nor a statement as to future expectation, but an assertion of a past or present fact. Commonwealth v. Drew, 19 Pick. 179. Commonwealth v. Althause, 207 Mass. 32, 93 N. E. 202, 31 L. R. A. (N. S.) 999. There is no disposition on the part of the court, either in criminal or civil cases, to extend legal immunity for falsehoods beyond bounds already established. Mabardy v. McHugh, 202 Mass. 148, 149, 88 N. E. 894, 23 L. R. A. (N. S.)) 487, 132 Am. St. Rep. 484, 16 Ann. Cas. 500; Commonwealth v. Quinn, 222 Mass. 504, 513, 111 N. E. 405. 1 pleted the amount due to him from both de of obtaining money not due him, then" he fendants. should be found not guilty. This was denied rightly. There was no evidence on which such a finding justly could rest. The defendant gave no testimony of that nature. His testimony was that he made no misrep resentations whatever and that he simply insisted upon performance of a contract made with him. The evidence of the witnesses called in behalf of the commonwealth was diametrically opposed to that given by the defendant and was that the defendant demanded the $200 solely because it was necessary, as he said, in order to make the restitution demanded. The defendant had no right to an instruction of the character requested. Commonwealth v. Hassan, 235 Mass. 26, 32, 126 N. E. 287; Plummer v. Boston Elevated Railway, 198 Mass. 499, 516, 84 N. E. 849; Walsh v. Adams, 245 Mass. 1, 10, 139 N. E. 379; Director General of Railroads v. Eastern Steamship Lines, 245 Mass. 385, 401, 139 N. E. 823; McDonough v. Vozzela, 247 Mass. 552, 560, 142 N. E. 831. The request was inapposite to the record. Therefore it is unnecessary to determine whether the request was sound in law. Compare There was sufficient evidence to support a Commonwealth v. McDuffy, 126 Mass. 467, finding that the alleged representation was Commonwealth v. Burton, 183 Mass. 461, 67 false. If the testimony of the witnesses oth-N. E. 419, and Commonwealth v. Peakes, 231 er than the defendant was believed, there Mass. 449, 457, 121 N. E. 420. was no rational escape from that conclusion. The inference well might have been drawn from all the evidence that the payment of $150 in cash and a $50 Liberty bond made by Linegar to the defendant was intended to pass title to the latter, who might make the restitution to the injured owners in any form of security satisfactory to him and them. The defendant requested that an instruction be given to the jury to the effect that, if the defendant received from Linegar or Hughes or from both only money enough to pay what was actually due him, then he should be found not guilty. This request, so far as sound, was given in substance. The contention of the defendant was set out at length in the charge. To that statement no exception was taken. The jury then were told plainly that, if the sum paid on March 26, 1921, was merely the balance due upon a contract made by the defendant with Linegar and Hughes, then the latter had no interest in the amount of the restitution and it would make no difference whether such contract was lawful, or not. That was sufficiently favorable to the defendant, Plainly it was open to the jury to find that it was not paid for that purpose in the minds of any of the parties. [2, 3] The defendant further prayed for an instruction that, if "the defendant made representations only for the purpose of getting the money due him and not for the purpose [4] There was no error in the rulings respecting evidence. The several questions put to the witness Linegar on cross-examination, as to what false representations were made to him, were not necessarily admissible. They called for an opinion as to the law in the light of inferences to be drawn from evidence. Commonwealth v. Burton, 183 Mass. 461, 473, 67 N. E. 419. Other exceptions to evidence have not been argued and are treated as waived. Exceptions overruled. CHISHOLM v. HART et al. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 9, 1925.) Release 27-Joint release by two releasors held not to release obligation due one of them. Joint release by plaintiff and another of all obligations due them by defendant held not release of obligation due from defendant to plaintiff in severalty, though including parties' heirs, executors, and administrators. Exceptions from Superior Court, Middlesex County; S. E. Qua, Judge. Action of contract by Roderick Chisholm against Martin J. Hart and another to recover commission for sale of certain real estate. (146 N.E.) Verdict for plaintiff, and defendants except. | to Chisholm individually were in accord with Exceptions overruled. familiar law. Averill v. Lyman, 18 Pick. 346; The following joint release was executed bler Works v. Mitchell Woodbury Co., 215 Reed v. Tarbell, 4 Metc. 93; Rochester Tumby plaintiff and another: "Release of all Demands. "Know all men by these presents that we, Fred L. Vance and Roderick Chisholm, both of Lowell in the county of Middlesex, for and in consideration of the sum of one dollar dollars to us paid by Martin J. Hart, the receipt whereof is hereby acknowledged, have remised, released and forever discharged, and we do hereby, for ourselves, heirs, executors, administrators and assigns, remise, release and forever discharge, the said Martin J. Hart or his heirs, executors and administrators, of and from all debts, demands, actions, causes of action, suits, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, promises, doings, omissions, variances, damages, extents, executions and liabilities whatsoever, both in law and equity, or which may result from the existing state of things which has existed between the said Martin J. Hart, and especially is the said Martin J. Hart released from any claims of any nature in law or equity which we have or ever had because of being interested with him in the building of certain houses bordering on Durant street and Beacon street in said Lowell, or for any other matter which we now have or ever had from the beginning of the world to the day of the date of these presents." Farley & Tierney and E. J. Tierney, all of Lowell, for plaintiff, Mass. 194, 102 N. E. 438. PIZER v. HUNT et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 10, 1925.) 1. Novation 12-Evidence held to warrant finding that, on assignment of account with brokers, they made new contract, discharging assigned account from liens under another account of assignor. Where plaintiff's assignor had two accounts with defendant stock brokers, and assigned one of them to plaintiff, evidence held to warrant finding that defendants made a complete novation, by new contract on valid consideration with plaintiff at time of assignment, thereby discharging assigned account from liens and obligations of assignor on the other account. 2. Pleading 236 (5) Allowing amendment after trial held within trial court's discretion. Where amendment to declaration, permitted under G. L. c. 231, § 51, set up no allegations which were not covered by evidence, there was no abuse of discretion in its allowance. 3. Constitutional law 314-Party to action Cregg & Cregg, of Lawrence, for defend- due process clause to have case decided and de ants. WAIT, J. The exceptions in this case must be overruled. The release relied upon by the defendant is a general release of all demands held by Chisholm and Vance against Hart. It is, manifestly, a joint release. The bill of exceptions states that the transaction upon which the plaintiff bases this suit has no connection with the building operations referred to in the release and there is no claim that Fred Vance was concerned in it in any way. The release relates solely to joint obligations. Nothing in its language indicates that it deals with individual claims of Chisholm or of Vance. The presence of the words "heirs, executors, administrators and assigns" has no tendency here to show an intention to give a several character to the instrument. Morrison, Appellant, v. American Surety Co., 224 Pa. 41, 73 A. 10, cited by the defendant, differs materially from the case before us, and does not sustain his contention. termined on form of procedure which may have been inadvisably or mistakenly chosen. Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge. Action of contract by A. Pizer, as alleged assignee of one P. E. Gash, against William Hunt and others, to recover credit balance and certain securities carried in margin account. General finding for plaintiff, and defendants except. Exceptions overruled. M. M. Horblit and H. A. Eyges, both of Boston, for plaintiff. P. H. Kelley, of Boston, for defendants. PIERCE, J. From the report of the auditor, and evidence introduced at the jurywaived hearing, it appears that on May 12, 1919, Gash opened a margin account with the defendants under the name of "P. E. Gash," and signed a customer's registration card. This card set out certain stipulations and conditions which should govern the transactions between them, and contained a paragraph reading: The refusals to charge as requested and the instruction actually given that Chisholm and Vance's joint release of an obligation due to them jointly was no bar to a suit by Chis- "(2) In the making of loans or the delivery holm on an obligation then due in severalty of securities either for my account or for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes account of your other customers in the usual and regular course of your business, I hereby authorize you to loan, hypothecate or otherwise use all securities held or carried for my account from time to time upon the understanding that the same shall be delivered upon payment of the amount due on my account; and I authorize you without demand or notice, to close out at public or private sale my account or securities held or carried therefor, whenever you deem it necessary for your protection." "Please transfer my account to that of A. Pizer [the plaintiff] 655 Cross street, Malden and oblige." The defendants assented to the assignment, the plaintiff signed a registration card, in form similar to the registration card signed by Gash when his accounts were opened. The defendants closed the No. 1 account on their books and opened a new account in the name of "A. Pizer," and thereafter, in their bookkeeping and in their monthly accounts, treated Pizer as the person with whom they were dealing so far as concerned account No. 1 and the securities carried on that account. There were 440 shares of stock in the No. 1 account, and these shares were credited in the name of A. Pizer on January 31, 1920, and debited with the sum of $22,591.95. On February 4 and 5, 1920, 340 shares of stock were sold out of the 440 shares of stock that were in the No. 1 account on Jan At the time the "P. E. Gash" account was opened on May 12, 1919, Gash deposited $1,000, in accordance with the custom of brokers as to so-called margin accounts, and thereafter the defendants executed various orders for the purchase and sale of securities on orders of purchase and sale signed by P. E. Gash, shown on the original ledger sheets, beginning May 12, 1919, and ending January 31, 1920. In August, 1919, Gash opened a second margin account with the defendants, this account being carried on their books as "P. E. Gash a/c 2." In Sep-uary 31, 1920. The liquidation of the tember, 1919, A. N. Gash, brother of P. E. Gash, transferred an account belonging to him to Phillip E. Gash and the defendants merged this account into the "P. E. Gash a/c 2," so designated. Prior to January 31, 1920, Gash traded in the two margin accounts, gave orders for the purchase and sale of securities for his accounts on signed printed slips, the order itself identifying the particular margin account which he intended the order to be charged to and carried in. These accounts were kept on separate and independent ledger sheets and prior to January 31, 1920, monthly statements were sent | to P. E. Gash of the No. 1 and No. 2 accounts separately. On January 31, 1920, Gash owed the defendants on the shares of stock which the defendants were carrying for him on the "No. 1 account" $22,591.95. It further appeared that a then liquidation of this account would have produced a credit balance of $5,488.05 at the high price and of $4,150.80 at the low price of the stocks, had they been sold on that day. It further appeared that on the same day Gash owed the defendants on the shares of stock they were carrying for him on the No. 2 account $5,154.81, and that on sale of these stocks there would have been an equity of about $150. On January 31, 1920, Gash made a written assignment to the plaintiff of all his right, title and interest in certain enumerated stocks as "credited by the defendants," which stocks were those carried by the defendants in the No. 1 account. The same day Gash and the plaintiff went to the office of the defendants and Gash notified the officers of the defendant firm that he desired to transfer his account No. 1 to the plaintiff. An order was thereupon drafted for, and signed by, Gash in the office of the defendants. The No. 1 account removed and voided the debit side of the account and left a credit balance on April 30, 1920, of $1,437.18, 100 shares of International Nickel of the then value of $1,950 and a Liberty Bond of the value of $45. On April 30, 1920, the plaintiff made a demand on the defendants for the payment of the balance standing to his credit on that day, to wit, $1,437.18, and for the delivery to him of the 100 shares of International Nickel and the Liberty Bond. The defendants, speaking through one Dennett, the manager in charge of the business, refused to meet this demand, claiming to hold the No. 1 account to protect the No. 2 account, as the defendants had notified the plaintiff they should do on February 10. 1920. On April 30, 1920, taking both accounts together there was a debit balance in cash of $1,237.20 after crediting the cash balance due on the No. 1 account against the debit due under the No. 2 account and neither the plaintiff nor P. E. Gash has ever at any time offered to pay the said debit balance due the defendants. There were no purchases on the No. 1 account after January 31, 1920, and since April 30, 1920, to the time of the trial there was no change in either the No. 1 or No. 2 account. For the defendant there was evidence, if believed, to warrant a finding that the assignment was feigned, was intended only to protect the account against creditors of Gash, and that Pizer and Gash were told by the defendants' manager before the new account was opened, "We will do this to accommodate you, but you must remember that our right will in no way be affected by the transfer." [1] Notwithstanding the fact that the account which was opened with Gash on May 12, 1919, was separated into accounts num (146 N.E.) uary 31, 1920, was treated as if each account had been owned by different individuals, it is obvious the defendants had a general lien on all the securities purchased for the account of P. E. Gash and credited to him in the No. 1 and No. 2 accounts, to secure the payment of the general debit balance of $27,746.76 then due and payable on demand, if there was no special contract limiting the general lien rights of the defendants. Clark v. Northampton National Bank, 160 Mass. 26, 35 N. E. 108; Wood v. Boylston National Bank, 129 Mass. 358, 359, 360, 37 Am. Rep. 366. We agree with the conten tion of the defendants that Gash on January 31, 1920, on the evidence before us, could not have compelled the defendants to pay Gash the credit balance shown in account No. 1 on that day, without deducting the debit balance as it then stood in account No. 2. In the absence of an agreement to relieve the securities in the No. 1 account from the burden of the debt of Gash to the de duly excepted to the allowance, and now by the allowance of an amendment "in mat fendants in the No. 2 account, the assign-cretion may make available and valuable ment of the shares in the No. 1 account transferred to Pizer the right only which Gash then had in such account and in the securities named in the assignment and credited in the account. The "substitute declaration" is founded solely upon the theory of an accepted assignment of a part of an entire account which part, for the convenience of the assignor, was separated from the remaining part on the books of the defendant. On the facts above set out it is plain the plaintiff could not recover when the writ was served if the right of recovery rests upon the assignment right of Gash to recover the balance found due upon an accounting. But the evidence warranted a finding that there was a complete novation between the plaintiff, Gash and the defendants, whereby account No. 1 was discharged of all liens, save such as pertained to the charge of the defendants against the securities assigned to the plaintiff and enumerated in the assignment and the account, and whereby the plaintiff became charged with, and Gash became discharged from, the debit obligations of that account. The evidence therefore warranted the finding that the defendants on January 31, 1920, made a new contract for a valuable consideration with the plaintiff, and that thereafter the rights and obligations of the plaintiff and defendants stood distinct and apart from the contractual relations which came into existence in May and August, 1919, between the defendants and Gash. [2, 3] The presiding judge under the authority of G. L. c. 231, § 51, allowed the plaintiff to amend his declaration "by setting up specifically the making of a new contract between the plaintiff and the defendant on January 31, 1920." The defendants ter of form or substance." Ball v. Claflin, 5 Pick, 303, 304, 16 Am. Dec. 407; Beers v. McGinnis, 191 Mass. 279, 77 N. E. 768; Stevens v. Nichols, 157 U. S. 370, 15 S. Ct. 640, 39 L. Ed. 736. We find no error in the allowance of the amendment. We have considered every point argued in the brief which is based on exceptions and find no reversible error. Exceptions overruled. BRUSH et al. v. CITY OF NEW BEDFORD.. (Supreme Judicial Court of Massachusetts. Bristol. Jan. 10, 1925.) Taxation 88-Nonresident brokers, holding warehouse receipts, held "owners" of cotton. Where warehouse receipts for cotton, documents of title under G. L. c. 105, §§ 46, 54, and under which title could be passed as intended under G. L. c. 106, § 20(1), were issued to nonresident cotton brokers, and in sales notes given by them title did not pass till paid for, brokers controlling receipts April 1, 1920, payment for which was yet to be made by buyer, were rightly assessed as "owners," under St. 1909, c. 490, pt. 1, § 23, as amended by St. 1918, c. 129. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Owner.] Exceptions from Superior Court, Bristol County; H. T. Lummus, Judge. Petition by Charles N. Brush and others for abatement of taxes assessed by the City For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |