Commonwealth v. Althause

93 N.E. 202, 207 Mass. 32, 1910 Mass. LEXIS 718

• Court: Massachusetts Supreme Judicial Court
• Decided: November 22, 1910
• Status: Published

Opinion

Loring, J.

The defendant contended that under the note held by him signed by Powers he had the right to sell the property held under it as collateral security at any time if he thought it wise to do so. But the presiding judge instructed the jury that the note did not authorize the holder to sell the collateral until the maker of the note was in default under some one of the promises or conditions stated therein. The difference, between the two views lies at the foundation of this case and we take it up in the first instance.

The provision to be construed is in these words: “ The right to make such use of the collateral security named herein ... as they may desire, subject only to their obligation to deliver to the said borrower, or order, collateral of the same amount and kind as that mentioned above.”.

Were it not for the decision in Ogden v. Lathrop, 65 N. Y. 158, we should have had no hesitation as to the true construction of this provision. It is doubtless competent for a pledgor and pledgee to agree that securities pledged for the payment' of a note (in which the pledgor has the general property and the pledgee a special property or lien for payment of the debt due to him from the pledgor) may be sold by the pledgee and the proceeds used by him (the pledgee) as if he alone had been the owner of the securities, leaving to the pledgor (in whom was the general property in those securities) nothing but the unsecured personal obligation of the pledgee to account to him for the value of the securities at the date of the payment of the note. Such an agreement, if made, is not an incident to a pledge of securities. It is an agreement authorizing the pledgee to end the pledge and all the rights of the pledgor in the securities pledged.

It follows that if it is found in a writing by which securities are pledged it must, to have that effect, be couched in terms which do not admit of doubt, as was the case in the note in question in Wilson v. Hawley, 158 Mass. 250. For if the provision is found in a writing pledging the securities it should be construed, if that be possible, to be .an agreement declaring the terms of the pledge and not an agreement authorizing the pledgee to end the pledge and all interest of the pledgor in the securities pledged.

It is plain therefore that the “ use ” authorized in this note should be construed to be a “ use ” as collateral security unless the provision so construed would be meaningless. But that is far from the fact. It is a matter of common knowledge that, in lending money, banks and bankers require the pledge en bloc of the securities put up as collateral. That means that if a lender of money on security wishes to be able to put himself in funds (in connection with the advances made by him) through a rehypothecation of the securities pledged to him, he must have authority to separate the securities received by him from the debts due to him for which they were respectively pledged. That is a right which he does not have in the absence of an agreement authorizing that to be done. Not only that, but such a use of securities pledged to him as collateral is, in the absence of an agreement authorizing it, a criminal offense. B. L. c. 208, § 71.

Where A borrows of B and pledges to B securities for the repayment of the loan so made, and as part of the agreement authorizes B to pledge those securities en bloc with other securities owned by him (B) for money borrowed by him, a use of those securities is authorized which is incidental to the pledge of them and not directly destructive of it. We say not directly destructive of the pledge because it is evident that all the securities pledged en bloc might be sold to pay the new debt, and in that way the right of redemption which the original pledgor had might be extinguished.

The provision that the “right to make such use of the collateral security ... as they may desire ” is to be “ subject only to their obligation to deliver to the said borrower, or order, collateral of the same amount and kind,” does not lead to a different conclusion. The obligation to keep sufficient securities of the same amount and bind on hand in place of the identical securities delivered is one of not uncommon occurrence in the methods of carrying on business which now obtain. Its most common occurrence is in case stocks are carried on margin in a jurisdiction where the stock bought and carried on margin belongs to the customer. See Richardson v. Shaw, 209 U. S. 365, where the cases are collected.

Ample reason therefore for the provision here in question is found in authorizing the pledgee of the pledged securities to repledge them en lloe (as was done in Wilson v. Hawley, 158 Mass. 250), and such a “ use ” is a “ use ” incidental to a pledge and not destructive of it. For these reasons we should not have hesitated to limit the word “ use ” in this agreement to “ use ” as collateral security were it not for the case of Ogden v. Lathrop, 65 N. Y. 158. It was assumed in the opinion in that case, and assumed without argument so far as that opinion goes, that no force could be given to the clause there in question unless a sale was authorized. The clause there in question gave the pledgee “ authority to use, transfer or hypothecate ” the securities pledged to him. However it may be with those words we cannot believe that when a pledgor gives to the pledgee authority to “ use ” securities pledged to him he intends to authorize the pledgee to end his (the pledgor’s) property in the securities pledged at his (the pledgee’s) will, substituting therefor his (the pledgee’s) unsecured obligation to account for whatever may be the value of the securities upon payment of the note by the pledgor. For these reasons we are of opinion that the decision in Ogden v. Lathrop, 65 N. Y. 158, should not be extended to the clause in the note here in question.

The case of First National Bank of Chicago v. Caperton, 74 Miss. 857, is not an authority for the construction of the note put forward by the prisoner in the case at bar. Where a right to use is given to a mortgagor and the mortgage is a mortgage of the product of a factory or the contents of a store, it would be hard not to construe a right given to the mortgagor to use the mortgaged property to be a right to sell it. But where the right to use is given not to a mortgagor but to a pledgee and the property to be used by the pledgee consists of securities pledged as collateral for a debt due from the pledgor, it is not possible (in our opinion) to construe a right to use to be a right to sell. The other case relied on, Estes v. First National Bank, 15 Col. App. 526, is a similar decision by an inferior court of Colorado.

We are of opinion therefore that the judge was right in the construction which he put upon the note here in question.

There is another matter lying at the foundation of the case. In that matter we are of opinion that the judge was wrong.

The error, however, is an error of which the defendant cannot complain, for he asked the judge to adopt the view which he adopted. We discuss it, however, to arrive at a correct understanding of the case and because, as we decide later on, the case must go back for a new trial. The matter we now refer to is the view taken by the judge of the bill of particulars. The judge ruled that the Commonwealth had set forth in its bill of particulars the crime of larceny by obtaining property by false pretenses, and that having done so it must prove that kind of larceny. But in our opinion the bill of particulars is a colorless narration of facts. By that we mean that the facts set forth in the bill of particulars as the facts relied upon by the Commonwealth are set forth without any color being added to them by way of a conclusion of law. Under this bill of particulars the Commonwealth was at liberty to make out larceny in any way in which the facts stated show that a larceny was committed, whether it be a common larceny, embezzlement, obtaining property by false pretenses, or larceny as defined by R. L. c. 208, § 26. As to the last see Commonwealth v. King, 202 Mass. 379.

There is a further point on which in our opinion there was a mistrial, but of which again the defendant cannot complain. In this instance he cannot complain of the error because he did not complain of it at the trial. The crime of larceny by obtaining property by a false pretense consists in obtaining title to property by a false pretense. Commonwealth v. Barry, 124 Mass. 325. In the case at bar the title to the receipt for the two bonds which Powers parted with when he signed the note here in question never passed to the defendant. Not only that, but the note did not give the defendant any power of selling the receipt for the bonds and so of passing the title to another. That is just what the judge told the jury that the note did not do. In the case at bar a special property in the receipt for the two bonds passed to the defendant as pledgee of them to secure payment of the note signed by Powers. And it could have been found that this special property was procured by a false pretense. But that was immaterial. Powers did not lose his general property in and title to the receipt for the bonds by the defendant’s exercising his rights as pledgee. The bonds were not sold by the defendant under his right of property in them as pledgee, nor were they sold under the special rights given by the note to the holder of it (construing the note as it was in our opinion rightly construed by the presiding judge). To make out a case of obtaining property by a false pretense the title must be obtained by a false pretense or a contract must be procured by a false pretense, under which the other party passes the title to another. In the case at bar the receipt for the bond was sold by the defendant wrongfully without regard to his rights as pledgee.

If the bill of particulars had confined the Commonwealth to proving a larceny through obtaining property by a false pretense, the defendant would have been entitled to a verdict of not guilty as matter of law under the construction of the note adopted by the judge. The only effect which the false pretense had (if there was a false pretense in the case at bar) was upon the possession of the receipt which passed to the defendant by the making of the note. At common law that would have been material because obtaining possession by fraud is a taking within the meaning of that word in the definition of larceny at common law. Commonwealth v. Barry, 124 Mass. 325. Commonwealth v. Rubin, 165 Mass. 453. Commonwealth v. Flynn, 167 Mass. 460. Commonwealth v. King, 202 Mass: 379. But that is no longer material under R. L. c. 208, § 28. Under that act larceny is made out whenever a person “ unlawfully and, with intent to steal or embezzle, converts . . . the money or personal chattel of another, whether such money or personal chattel is or is not in his possession at the time of such conversion.”

But there is one error made by the judge which is open to the defendant. By his sixth request the defendant asked the judge to rule that “ a statement by the defendant that he would or would not use the receipt in a certain manner is not a false pretense within the meaning of the word,” and by his seventh request that “ a representation as an inducement to the making of a loan that something thereafter was to be or was not to be done is not a false pretense.” The testimony which gave rise to these two requests for rulings was given by Powers and was in these words: “ As soon as I had read the form of the note through and Mr. Althause had finished writing in what he wrote, I asked him why he inserted the clause giving them the right to the use of the collateral. I cannot repeat that clause. On being shown clause, 6 shall have the right to make use of such collateral named herein,’ the witness said, ‘That was the clause.’ Mr. Althause said that they had applications for loans greater by far than they had the money personally to supply, and that under that note they collected several minor loans which they had made to their customers into one group. He said that they had collected a number of minor loans which they made to their customers into a group, and they themselves, on this group of loans, obtained a loan from the bank. I asked him what bank they used, or which bank they used, and he said there were several banks. He said, ‘We are just now getting a collection of loans to go up to a bank in Haverhill, and your security will be put in that set and go there.’ I said, ‘ Is there any doubt in regard to the security of the collateral ? ’ He said, ‘ None whatever. We have a special arrangement with the banks with which we do business whereby we can substitute collateral so that when a man pays his obligation to us, if he will just give us one or two days’ time, we will get the collateral for him.’ ” The explanation and the only explanation given by the judge of the difference between a defendant’s promise to do a thing in the future and a present intention of a defendant as to the doing of a thing in the future was in these words: “ A representation or assurance in regard to a future transaction in the nature of a promise is not a false pretense; that is to say, if I say to you, ‘ Here, you do a certain thing and then I promise you that some time in the future I will do something else,’ it is not a false pretense if I fail to do that thing in the future unless that promise was made to induce you to do the particular thing, and I deliberately intended at that moment not to do it and made it for the purpose of inducing you to do something which you had not determined to do and which you would not have done but for that promise.” The defendant “ duly excepted to those portians of the charge to the jury which were given relating to the matters contained in the . . . sixth [and] seventh . . . requests.”

As a general proposition of law apart from statutes making it a crime to obtain property by a false pretense, it would seem that a man’s present intention as to a future act is a fact. Elgington v. Fitzmaurice, 29 Ch. D. 459. Swift v. Rounds, 19 B,. I. 527. In the first of these two cases (Edgington v. Fitzmaurice) Bowen, L. J., said, at p. 483: “ The state of a man’s mind is as much a fact as the state of his digestion.” And Chapman, O. J., in Commonwealth v. Walker, 108 Mass. 309,312, said: “ A man’s intention is a matter of fact, and may be proved as such.”

There are eases where this proposition has been applied in case of indictments for obtaining property by a false pretense. For example it was so applied in State v. Nichols, Houst. Cr. Cas. 114. In that case the defendant, to induce the prosecuting witness to lend him money, represented to him that he wanted it to lend with some of his own money to a third person. The jury were told that if this was false it was a false pretense. The doctrine of this and similar decisions is that if in addition to making a promise to repay money borrowed, for example, the defendant procured the loan by a false statement of his present intention as to the purpose for which he wished to secure the loan, it is a false representation of a fact and so a false pretense. There is however a conflict in the authorities on this point. There are cases in which it has been held that in such a case as that before the court in State v. Nichols, ubi supra, the representation by the defendant of his present intention as to the purpose for which he wished to secure the loan is essentially a promise by the defendant that he will use the money lent in the way then stated and is not a false pretense. See for example People v. Blanchard, 90 N. Y. 314. The cases on one side and on the other are collected in 19 Cyc. 397, notes 57, 58.

But in the case at bar the presiding judge went beyond any decided case in the explanation which he gave of the difference between the representation of a person’s present intention as to a future act and an assurance or promise that the future act shall be done. For the purpose of illustrating the essential difference between the two he put as an example of obtaining property by a false pretense a ease which is not obtaining property by a false pretense. In effect he told the jury that if A buys property intending not to pay for it he obtains that property by a false pretense. In that case A makes no representation at all. All that he does is to make a promise, and a promise is not a representation of a fact. It has been sought to make out that in legal contemplation a promise with an intention not to perform is a false pretense because a promise to do a thing of necessity implies a present intention to do it, and therefore whenever you have a promise coupled with an intent not to perform you have an implied false representation of an intention to do the" act which the defendant promised to do and so a false pretense. And this finds some apparent support in Swift v. Rounds, 19 R. I. 527. In that case it was held that where a defendant buys property intending not to pay for it he is liable in an action of deceit because be impliedly represents that he intends to pay for it by the act of buying. It may be doubted whether the making of a promise implies of necessity in all cases a present intention to perform that promise. Upon that question we do not find it necessary to express an opinion. For however that may be, the fraud of obtaining property by buying it intending not to pay for it is not, as matter of construction of the statute creating it, the crime of obtaining property by a false pretense. At common law obtaining property by a false representation of fact, that is, by a lie, was not a crime. Commonwealth v. Hearsey, 1 Mass. 137. Commonwealth v. Warren, 6 Mass. 72. Commonwealth v. Call, 21 Pick. 515, 520. Obtaining property by false weights or false measures was a gross cheat at common law and punishable criminally as such. By St. 33 Hen. VIII. c. 1, cheating by false tokens was also made a crime. This was the state of the law when St. 30 Geo. II. c. 24, was enacted. That act provided that “ all persons who knowingly and designedly, by false pretence or pretences, shall obtain from any person or persons, money, goods, wares or merchandizes, with intent to cheat or defraud any persons of the same ” shall be punished, etc. This was enacted in this Commonwealth (in practically the same words) by St. 1815, c. 136. It is evident that the fraud (which by enacting that statute the Legislature intended to make a crime) was obtaining the property of another by a false statement of a fact; and it is equally evident that in enacting it the Legislature did not have in mind the fraud of buying goods not intending to pay for them. Both are frauds but they are not the same fraud. In our opinion it was the former alone which the Legislature had in mind in making it a crime to obtain property by a false pretense.

The decisions in this Commonwealth so far as they go are not in conflict with this view. Commonwealth v. Drew, 19 Pick. 179, was a case where a depositor had deposited money in. a bank under a fictitious name and finally presented to the bank a check to be cashed after he had drawn out all the' money deposited by him and received payment of it. It was held that he could not be convicted under the ’ statute because drawing and presenting the check was not an implied pretense that he had funds in the bank. This conclusion was reached on the ground that “a check, like an order on an individual, is a mere request to pay.” But the court added that if a check drawn under those circumstances is passed to a stranger “ it would probably be holden to be a false pretense.” In Commonwealth v. Eastman, 1 Cush. 189, three partners were indicted for conspiracy in defrauding persons of their goods of whom they made purchases while they (the defendants) were in failing circumstances. In the opinion in that case it was said, at p. 222, that if the defendants had bought “ knowing that they had no funds to pay with,” thus appropriating the goods to their own use, in fraud of the sellers, a different case would have been presented from that which was presented to the jury by the charge of the presiding judge. And this court went on to say: “ Such a case would show a deceptive contrivanee or false pretence. The known inability to pay for the goods would render the act of the party a fraudulent and unlawful one.” In determining what effect' should be given to this statement it is to be borne in mind that the indictment then before the court was an indictment for conspiracy. And an indictment for conspiracy was an indictment which there was no reason for resorting to if buying property with an intent not to pay for it is obtaining property by a false pretense. See in this connection People v. Wheeler, 169 N. Y. 487, 494. The cases of Commonwealth v. Walker, 108 Mass. 309, and Commonwealth v. Drew, 153 Mass. 588, were indictments under the special stat, ute originally enacted in 1863 (St. 1863, c. 248, § 2) making it a crime to obtain goods with intent to defraud “ under false color and pretence of carrying on business, and dealing in the ordinary course of trade.”

The fraud of obtaining property of another by buying it with an intent not to pay for it might well be made a crime by the Legislature. But it is not the fraud of obtaining property by a false pretense.

We are therefore of opinion that this exception must be sustained.

We have held that the fact in the ease at bar (if it was a fact) that Powers was induced to borrow the money and pledge the receipt by the defendant’s misrepresentation of an intention on his part to keep it in a bank as collateral for money borrowed by him did not make out a case of obtaining property by a false pretense because Powers was not thereby induced to. part with the property in the receipt. We have also held that although that misrepresentation might bear on the question of possession it is immaterial in that connection because possession is not now material in making out larceny under R. L. c. 208, § 26. But it does not follow that that fact (if it is a fact in the case at bar) is of no significance. It is in our opinion significant (if it is a fact), and its true significance lies in its bearing on the defendant’s criminal intent. If the defendant in selling the negotiable receipt the day after he received it from Powers acted honestly under a claim of right he was not guilty of larceny. But on the other hand if he lent the money to Powers to secure possession of the negotiable receipt with a view of feloniously converting it to his own use, and then did feloniously convert it to his own use, he was guilty of larceny. Whether one or the other of these two was the fact was an issue on which the defendant’s representation as to his then present intention of keeping the receipt in bank so that he would be able to return it to Powers on his paying his loan was material.

The entry must be

Exceptions sustained.