Connecticut. Supreme Court of Errors.

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sustained no damage; that they saved forty per cent of the
debt due on the deficiency judgment by compromising as
they did, since the attachment was good and the property at-
tached covered the whole claim ; and that the party rightfully
entitled to receive the money got it, and the party bound by
the strongest obligation known to the law to pay it from his
own property paid part of it, and by the alleged fraud escaped
paying the other part. If the offered evidence tended to
prove this, were we not entitled to offer it on this ground?

6. The third reason for appeal is based upon the claim that
the cause of action which the court found to be proved is
niateiially variant from that set out in the complaint, and
therefore does not sustain the judgment. It must be con-
ceded that the plaintiffs cannot set up one cause of action
and recover upon a materially different one without amend-
ment. Bigelow on Fraud, 179 ; Kerr on Fraud & Mistake.
382 ; Pomeroy on Rem., 2d ed., 610, 625 ; Clark v. Post, 113
N. York. 17. On the other hand we do not claim that the
failure of the plaintiffs to prove their whole case prevents
a recovery, provided they have proved the " substance of



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APRIL, 1890. 547



Sprague t. Taylor.



the charge." Bigelow on Fraud, 185. The question is,
therefore, resolved into an inquiry as to what is the substance
of this complaint. We claim that it is the fraudulent procur-
ing, by the defendant, of a suit to be brought by the Kents
against the plaintiflFs, in violation of the professional duty of
the defendant. The cause of action upon which the trial
judge pronounced judgment was the false statement. If an
attorney, while employed by a client to defend against an
apprehended suit, causes that suit to be brought, we suppose
his liability to a suit for damages by his client to rest upon
an entirely different basis from that upon which judgment
was pronounced in this case.

G. Stoddard and TF. 2). Buhop^ Jr.^ for the appellees.

Thayeb, J. In the summer of 1885 the defendant, an at-
torney at law, was employed by one Kent to collect a defi-
ciency judgment for the sum of $1,849.82, which had been
rendered in September, 1874, by the Supreme Court of the
state of New York against the plaintiff Daniel Sprague. At
the time of such employment the defendant was not counsel
for the plaintifEs, but he had been their counsel, and had
been consulted by them in reference to this judgment and
the bond upon which the judgment was based, and he be-
lieved that they would come to him or to his father for pro-
fessional advice and assistance whenever any attempt should
be made to collect the judgment. During a prolonged ab-
sence of his father in the south the defendant drew up a
wiit, wherein it was alleged that both of the present plaint-
iffs had executed the bond and that the judgment was
against both, and, for the purpose of deceiving the plaintiffs
and leading them to believe, if they came to him for advice
and assistance, that he was not employed to collect the judg-
ment, caused the writ to be signed, issued and delivered to
an officer for service upon the plaintiffs by a brother attor-
ney. The plaintiffs were served with the writ and immedi-
ately sought the defendant and employed and retained him
as counsel to defend the action, and the defendant accepted



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648 APRIL, 1890.



Sprague v. Taylor.



the employment. He thereupon went the next day to Pough-
keepsie and examined the records in the case wherein the
judgment was rendered, and ascertained that the plaintiff
Margaret Sprague was not liable either on the bond or
the deficiency judgment. Upon his return, for the purpose
of deceiving the plaintiffs, the defendant falsely and fraudu-
lently told them both that Mrs. Sprague had signed the
bond and was liable on the deficiency judgment, and ad-
vised that she had better settle the case which had been
brought against them upon the most favorable terms she
could obtain. Mrs. Sprague believed these false statements
to be true and relied upon them, and upon the advice and
counsel of the defendant and solely in consequence thereof
and in accordance therewith, she paid $1,875 in settlement
of the suit.

These facts were found by the Superior Court and judg-
ment was rendered for Mrs. Sprague, in whose behalf the
suit is prosecuted, for the whole amount paid by her. The
defendant appeals.

It is alleged in the complaint that the defendant had been
retained and employed by the plaintiffs and was their counsel
at the time he caused the suit to be instituted against them.
All the other facts found are substantially alleged in the
complaint. Upon the trial the defendant claimed that the
gist of the action against him was that, while employed by
the plaintiffs as their attorney, he brought the suit against
them, and that without proof of that allegation the plaintiffe
could not recover. The court overruled the claim, and this
constitutes one ground of the defendant's appeal.

It is apparent from the complaint that the plaintiffs based
their right to recover upon the fraud and deceit of the de-
fendant. Every fact which is essential to constitute a case
of actionable fraud is fully alleged. It is averred that by
reason of the defendant's false representations Mra. Spi-ague
was defrauded out of the sum paid by her. The answer
traverses specifically the allegation that the defendant made
the fraudulent statements alleged. The issue of fraud is
thus distinctly i*aised by the pleadings. As the complaint



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APRIL, 1890. 549



Sprague v, Taylor.



is not demurred to and all the allegations of facts consti-
tuting an action of deceit are found to be true, the plaintiff
is entitled to recover although other facts are alleged in the
same count from which it appears that she has another cause
of action against the defendant. Practice Act, rule 4,
sec. 13 ; JSoUy v. Brown^ 14 Conn., 268. The allegation
that the defendant was attorney for the plaintiffs at the
time he brought suit against them was apparently made by
way of introduction and as explanatory of the relations of
the paities at the time the representations were made. It
appears that while he was not their attorney when the suit
was brought he had been retained by them before the false
representations were made.

The defendant upon the trial offered evidence to prove
that the real estate which was mortgaged as security for the
money paid in settlement of the Kent suit was purchased
with money belonging to the plaintiff Daniel Sprague, and
that the title was taken in the name of Mrs. Sprague with
her full knowledge, for the purpose of defrauding the hold-
ers of the Kent judgment in preventing them from collect-
ing the same. The coui*t excluded the evidence, and this
ruling constitutes the defendant's remaining ground of
appeal.

The evidence was offered for the following purposes : —
first, to show that the plaintiffs had suffered no damage ;
second, to disprove the allegations in the complaint, and
contradict the testimony of Mrs. Sprague, that the $1,875
paid by her was her property ; third, to show that the motive
which induced the plaintiffs to pay the money was not the
one alleged in the complaint, but was the belief on their
part that the Kents could subject the property in question
to the payment of their judgment; fourth, to contradict the
testimony of Mrs. Sprague that the defendant had made
false statements to her, and to corroborate the testimony of
the defendant that he did not make them ; fifth, to show the
condition of the property in question and the whole circum-
stances concerning the agreement and arrangements about
it ; sixth, to show the full knowledge of both Mr. and Mrs«



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650 APRIL, 1890.



SprAgue 9. Taylor.



Sprague that the Kent judgment was against him and not
against her.

This suit was brought iu behalf of Mrs. Sprague. The
court finds that she was not liable on the bond or judgment
upon which the Kent suit was based. She was led by the
defendant's fraudulent representations to believe that she
was liable. She borrowed the money and paid it to discharge
that liability and was damaged thereby. It makes no dif-
ference whether the property mortgaged to secure the loan
of that money was her property, her husband's or a stran-
ger's. It was alleged in the complaint, it is true, that she
raised the money by a mortgage of her property ; but that
allegation was wholly immaterial. By rule of court proof
of allegations of facts wholly immaterial to the right claimed
by the pleadings will, on objection, be excluded, and the same
is of course true with regard to proof offered to rebut such
allegations. The evidence was therefore inadmissible for
the first two purposes for which it was offered.

The existence of the facts sought to be proved is entirely
consistent with the fact that the defendant made the false
i^epresentations testified to by Mrs. Sprague. The evidence
therefore would not contradict her testimony or corroborate
that of the defendant that he did not make the representa-
tions. It was inadmissible therefore for the fourth purpose
for which it was offered.

As the evidence under consideration was the only evi-
dence objected to, and as that evidence neither contradicts
the plaintiff*s testimony nor corroborates that of the de-
fendant, we are to assume to be proved the fact found by
the court, that the false representations were made. Was
the rejected evidence admissible for the third purpose for
which it was offered, namely, to show that these false repre-
sentations were not the motive which induced Mrs. Sprague
to pay the money? The most that can be claimed is, that
in the absence of other testimony they would show a mo-
tive for the payment. Had the defendant proposed to go
further and show that the money was actually paid from
this motive, the evidence would have been admissible as



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APRIL, 189a. • 551



Sprague o. Taylor.



showing that the false representations were not believed and
acted upon. But the finding shows no such offer. It ap-
peal's that the evidence was offered to prove an independent
collateral fact — to show a motive, other than the false repre-
sentations, which the court might be asked to infer was the
one which induced the payment. When offered for such
purpose it wa^ properly excluded. It is conceded and is
unquestionable that the defendant's false representations
need not have been the sole inducement which influenced
Mrs. Sprague. Bigelow on Fraud, p. 544, and cases there
cited. The plaintiff testified that she relied upon the de-
fendant's representations. In such a case it is incumbent
upon the defendant to prove that the false representations
were not relied on. It is not enough for him to say that
there were other representations or other circumstances
which might have been the operative inducement. Kerr on
Fraud and Mistake, 75 ; Opinion of Lord Justice Turner
in NicoVs Case^ 3 De Gex & Jones, 439.

The defendant argues that if the attached property was
shown to be the husband's and not the wife's the false rep-
resentations would constitute no motive for her settling the
suit. He says that it was the sole ownership of the prop-
erty by the wife which made the false representations of the
defendant in any sense an inducement for her to settle. He
thus assumes that the Kent suit was merely a proceeding to
subject the attached property to the payment of the debt.
This is the fallacy of his argument. That suit was not a
proceeding against the property. It was an action for dam-
ages. The attachment was a mere incident to the suit. It
nowhere appears that Mrs. Sprague had not other property
sufficient to satisfy the judgment. If persuaded that she
was liable upon the bond and judgment, that would be a
sufficient inducement to her to settle the suit, regardless of
the ownership of the property. In that case indeed the
facts offered to be proved would constitute no motive for
the payment, because, if she believed herself to be jointly
liable with her husband on the bond and judgment, she
would regard the attached real estate as equally subject to



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662 APRIL. 1890.



035 o»|



Connelly o. Masonic Mut. Benefit Association.



the payment of the debt whether it was her husband's prop-
erty or her own. As the Kent suit did not relate to the real
estate, the condition of the property and the agreements and
arrangements concerning it were irrelevant and immaterial.

It is claimed that knowledge of the purpose to defraud
the holders of the Kent judgment by taking the title to the
real estate in the wife's name necessarily includes knowledge
of the main fact that the husband alone was liable on the
judgment. That both husband and wife believed the feet
to be so is obviously all that could be inferred from the re-
jected testimony. It is alleged in the complaint that at the
time she retained the defendant Mrs. Sprague believed that
she was not liable on the judgment and so informed the de-
fendant. It was not necessary for the defendant to prove
what the plaintiff admitted by the pleadings.

There is no error in the judgment complained of.

In this opinion the other judges concurred.



Maey a. Connelly vs. The Masonic Mutual Benefit
Association.

New Haven A Fairfield Cos., Jan. T., 1890. Andbews, C. J., Cabpeit-
TER, Loomis, Torrance and Fenx, Js.

The decisions of a voluntary association in admitting members and disci-
plining, suspending or expelling them, are of a quasi judicial charac-
ter. The courts never Interfere with them except to ascertain whether
the proceeding was pursuant to the rules of the association, was in
good faith, and was not in violation of the laws of the land.

C was a member of a masonic mutual benefit association, and the plaintiff,
as the beneficiary named in his application for membership, became
entitled to $2,(KX) from the association at his death, if at that time he
continued a member. It was a condition of membership in the asso-
ciation that the applicant should be, and continue to be, a member in
good standing of some masonic lodge. C was at the time a member of
a local lodge, but liable to lose his membership by non-payment of
dues, any vote of the lodge suspending him for that cause being liable,



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APRIL, 1890. 653



Connelly o. Masonic Mat. Benefit Association.



under the rules of the Grand Lodge, to which the local lodge was sub-
ject, to reversal by the district deputy grand master, with a right of
appeal to the grand master of the state. C was thus suspended by the
lodge and died without having been restored. After his death the
plaintiff, on application to the deputy grand master, got the order of
the lodge reversed and an order made that his name be restored to the
rolls of the lodge as of the date of his suspension. This order was
afterwards affirmed by the grand master. These officers acted in good
faith and according to masonic rules. . The lodge, on receiving their
order in the matter, voted to restore Cs name to its rolls as of the date
of his suspension. Held —

1. That the matter was one that lay within the jurisdiction of the masonic

officers and that the decision of the grand master was final.

2. That it made no difference that the reversal of the order suspending C

from membership was not made till after his death. The effect of tlie
reversal was to place him where he stood in membership at the time of
his suspension.

The rules of the Grand Lodge required certain notice to be given to the
member by the local lodge, upon proceedings taken against him for
non-payment of dues. The deputy grand master found that this re-
quirement had not been complied with. In a suit against the Masonic
Benefit Association it was held that this finding was final and that evi-
dence could not be received to show that such notice had been given.

The association had been accustomed in all cases to refer the question
whether its members continued to be masons in good standing to the
masonic officers. Held that, in the absence of any other provision for
determining that question, the association would be regarded as hav-
ing made its contract with C in view of that usage, and that the con-
tract was to be construed as though it provided in terms that the
question should be so determined.

[Argued March 13th— decided April 22d, 1800.]

Action to recover a sum of money claimed to be due to
the plaintiff as the beneficiary of a deceased member of the
defendant association, under his contract of membership;
brought to the Superior Court in New Haven County, and
heard before F. B. Hall^ J. Facts found and judgment ren-
dered for the plaintiff to recover only the amount of assess-
ments paid by the member in his lifetime. The plaintiff
appealed. The case is fully stated in the opinion.

W. K. Totvnsend and G. D. Watrou9^ for the appellant.

W. C. Case and TF. H. Ely^ for the appellee.

Andrews, C. J. The plaintiff is the widow of Henry



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554 APRIL, 1890.



Connelly v. Masonic Mut. Benefit Association.



M. Connelly,* who died January 28th, 1885, and as the bene-
fioiaiy mtmed by said Connelly in his application for mem-
bership in the defendant association is entitled to recover of
the defendant the sum of two thousand dollars, if Connelly,
at the time of his death, was a member of the defendant
association.

Connelly became a member of the defendant association
in 1880. At that time he was a member in good standing
of the Baltic Lodge, No. 284, Free and Accepted Masons of
the City of Brooklyn, New York. Membership in good
standing in some masonic lodge was a condition to admission
into, and to the continuance of membership in, the defend-
ant association. One of the by-laws of the defendant pro-
vides that "any member of this association who shall
forfeit the benefit of his lodge by non-payment of dues shall
forfeit all rights to benefits in this association; and any
member suspended or expelled from his lodge, or who shall
stand non-affiliated for one year, aball forfeit his membership
in this association.'*

By a vote of Baltic Lodge, at a meeting held on the 11th
day of October, 1882, Connelly was regularly suspended
or unaffiliated for non-payment of dues. The defendant's
pleadings show no other reason "why he was not a member in
its association at the time of his death than his non-affiliation
in Baltic Lodge as shown by its vote. By another vote of
Baltic Lodge, passed on the first day of December, 1888<» the
name of Henry M. Connelly was restored to the rolls of the
lodge as of the day of his alleged suspension. The conten-
tion of the plaintiff is, that the effect of the last vote is to
render the former one void and as though it had never been
passed. If the contention is right then she is entitled to
recover the two thousand dollars ; otherwise not.

By the laws of masonry, Baltic Lodge, while it had the
government of its own members and the power to discipline
them, is itself subject to the Grand Lodge of the district in
which it exists, and to the constitution and statute laws of
such Grand Lodge. Section forty-six, article twenty-four,
of the constitution of the Grand Lodge of the district



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APRIL, 1890. 656



ConooUy v. Masonic Mut. Benefit Association.



within the limits of which Baltic Lodge is located, provides
as follows : — "A lodge shall have power to enact a by-law
which shall provide a penalty for the non-payment of lodge
dues, which penalty shall be unaffiliation ; but such penalty
shall not be inflicted except for the non-payment of at least
one year's dues nor until the brother shall have been duly
summoned thirty days previous to pay said one year's dues."
Another statute of the Gmnd Lodge provides that "in
order to unaffiliate a member for non-payment of dues a
lodge must act under a by-law passed in accordance with
the section of the constitution and statutes of the Grand
Lodge for that purpose made and provided.'' Another sec-
tion prescribes the form and requisites of a summons to be
used by a lodge in such cases, and how it must be addressed.
Section thirty-five of the constitution of the Grand Lodge
provides that " each district deputy grand master shall have
power, and it shall be his duty, (among other things) to
determine and order in what cases a member (of an indivi-
dual lodge) alleged to have been illegally stricken from the
rolls, rendered unaffiliated, or suspended for non-payment
of dues only, shall be restored to the rolls or reinstated ;
and if he discover in his district any masonic error or evil
to endeavor to immediately arrest the same by masonic
means, and, if he judge it expedient, to specially report the
same to the Grand Lodge."

Eustace H. Wheeler, district deputy grand master of said
district, having in the fall of 1888 investigated the ciicum-
stances under which Connelly was suspended as aforesaid,
on or about November first of that year declared his unaf-
filiation or suspension void upon the ground that the sum-
mons used by the Baltic Lodge did not conform to the
requirements of the Grand Lodge, and ordered his name to
be restored to the rolls of the Baltic Lodge as of the date
of his alleged suspension ; and the decision of the deputy
grand master was affirmed by the grand master of the state
of New York. In accordance with said decision and order
Baltic Lodge on the first day of December following voted
" that .the name of said Henry M. Connelly be restored to



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666 APRIL, 1890.



Connelly v. Masonic Mut. Benefit Association.



the rolls of said lodge as of the date of his alleged sus-
pension."

The facts so set forth in the finding indicate that the
masonic organization has a due and orderly system of laws
and rules, enacted by itself and enforced by its own agencies,
in accordance with which membership in any lodge is ac-
quired, continued, suspended or lost; and that all questions
of membership, or non-membership or of good standing in
any lodge, or of aflSliation or non-affiliation, are by these
laws and rules within the jurisdiction of their own oflScers,
and that when any such question has been passed upon by
their own tribunals, subordinate and appellate, the decision
is conclusive and binding upon all masons ; and that accoi*d-
ing to these laws and rules, an apparent non-aflSliation of any
member having been declared to be void by the proper ap-
pellate authorities and having been revoked by the lodge of
which he was a member, and his name restored to its rolls
as of the date of his alleged suspension, he would be all the
time a member in good standing of the lodge.

The defendant association contracted with Connelly on
the basis that he was a mason and that he should remain a
mason. It would have been easy for the defendant and
Connelly to have agreed upon some method by which the
question of his being or remaining a mason should be de-
cided so as to be binding upon them both. In the absence
of any agreement in what way his membership in some
masonic lodge was to be proved, or how his continuing to be
a mason in good standing was to be shown, we should nat-
urally infer that these questions were to be decided by the
masonic tribunals. There is no other authority by which
these questions could be decided. And it appears that this is
just what the defendant did. When Connelly applied to
become a member of the defendant association, they asked
for and received a certificate signed by an officer of Baltic
Lodge that he was a mason. They accepted that as conclu-
sive and admitted him to membership in the association.
When Connelly died they asked for a certificate to be signed
by the secretary of Baltic Lodge that he continued to be a



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APRIL, 1890. , 657



Connelly o. Masonic Mut. Benefit Association.



mason. The forms, of which copies are set forth in the rec-
ord, indicate that they are such as are used by the defendant
in all cases. They did in the case of Connelly precisely what
they do in the case of every one of their members. They
referred the question of being or not being a mason to the
masonic officers themselves. Such a usage shows that it is
really a part of the contract made by the defendant with
each of its members that masonic questions shall be decided
by masonic tribunals. This is a usage by which we think the
defendant must be concluded. In the light of this usage



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 50 of 60)