ADAM DICKEY vs. ARTHUR WILLIS & another.

TORT , with two counts. The first count alleged that the defendant Willis falsely and fraudulently represented that he was the owner of a certain parcel of land in the town of Brookline, that Willis made a contract in writing with certain building contractors, doing business under the name of McFarlan and Company, for the erection of a house on such land, that the plaintiff as a subcontractor, believing that Willis was the owner of the land, furnished certain materials for such house, for which the plaintiff failed to establish a lien by reason of such belief, which caused him to give notice to Willis of his claim of lien instead of giving notice to the true owner, and that the plaintiff, not being paid for the materials by the contractors, who were irresponsible, suffered damage. The second count alleged that the defendant Cunningham was the true owner of the land mentioned in the first count and falsely and fraudulently held out the defendant Willis as the ostensible owner of the house and land, whereby the plaintiff was deprived of his right to establish a lien for the materials furnished by him, because, owing to the deceit of the defendant Cunningham, he had not given notice in writing to him as the true owner of the house and land of the plaintiff's claim of lien as required by law, whereby the plaintiff had suffered loss. There was a further allegation that the two counts were for one and the same cause of action. Writ dated September 19, 1912.

The defendants demurred, assigning, among other grounds of demurrer, that the defendants were joined improperly as joint tortfeasors.

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In the Superior Court Hardy, J., overruled the demurrer as to the first count and sustained it as to the second count. Both parties appealed, and at the request of both parties the judge reported the case for determination by this court. If the ruling sustaining the demurrer to the second count was right and a similar ruling should have been made as to the first count, judgment was to be entered finally for both defendants. The other stipulations have become immaterial.

G. W. Reed, for the plaintiff.

H. L. Barrett, for the defendants.

RUGG, C. J. This is an action of tort against two defendants. The declaration contains two counts, one setting forth certain acts performed by one defendant, and the other, acts performed by the other defendant. But there is no allegation of conspiracy or concert between them. There is nothing which fairly can be construed as an averment of joint actions or conduct which would constitute them joint tortfeasors. The acts alleged to have been performed by each defendant are different and they are not alleged to have been part of a common design. Two persons cannot be joined as defendants in an action of tort unless they directly or indirectly co-operate in the doing of the wrong. The allegations do not bring this case within that class of actions. Feneff v. Boston & Maine Railroad, 196 Mass. 575, and cases cited at 580. Fletcher v. Boston & Maine Railroad, 187 Mass. 463. There is a misjoinder of defendants. On this ground the demurrer to both counts must be sustained.

It is not necessary to pass on the sufficiency of either count, as if it were against a single defendant, although it may be remarked that there is no averment that the representation contained in the contract between Willis and McFarlan and Company was made to the plaintiff or that he relied upon it. According to the terms of the report the entry must be

Judgment for the defendants.