Lynch v. Palmer

Crosby, J.

At the time the alleged misrepresentations were made, the defendant was the owner of certain lots on Gove Street in Medford as shown on a plan, including lots 88 and 90; the intervening lot (89) was a vacant lot forty- feet wide and was not owned by the defendant.

There was evidence that some time in June, 1914, the defendant was introduced to the plaintiff as the owner of lot 88; that he told her lot 88 was to be a corner lot, there would not be any doubt about lot 89 being a street, he owned it, it would always remain open, that he was reserving it for a street; there was also evidence that the plaintiff believed the statements so made, and that she purchased of the defendant lot 88 on which there was a house partially completed; that she would not have bought it under any other condition; that about a year after the purchase and after the house had been completed the defendant built a two-family house on lot 89, which made the plaintiff’s house very much darker on that side, the distance between the houses being approximately eighteen feet.

After the alleged representations were made, a written agreement for the purchase and sale of lot 88 was executed on June 19, 1914, and a deed was delivered by the defendant to the plaintiff on August 21, 1914.

The defendant admits that he did not own lot 89 at the time of the alleged representations. He testified that he did not obtain title to it until September,' 1914, which was after the date when lot 88 was sold to the plaintiff. He denied that he made the statements relied on by the plaintiff, but, if the jury believed they were so made, the verdict for the plaintiff was warranted.

If the defendant represented that he was the owner of lot 89, *152 that he was reserving it for a street, and that lot 88 was to be a corner lot, the jury could find that such representations were false and fraudulent and related to material facts; and if the plaintiff relied upon them and thereby was induced to purchase lot 88, as she testified, the defendant would be liable for the fraud and deceit practised upon her. Durkin v. Cobleigh, 156 Mass. 108, 111 . Kilgore v. Bruce, 166 Mass. 136 . Boles v. Merrill, 173 Mass. 491 . Vouros v. Pierce, 226 Mass. 175 . Mignault v. Goldman, 234 Mass. 205 .

If it be assumed that the representation that lot 89 would always remain open, be regarded as merely promissory as to the future, and for which an action for deceit would not lie, Dawe v. Morris, 149 Mass. 188 , Brown v. C. A. Pierce & Co. Inc. 229 Mass. 44 , the other representations were not of that character but related to existing facts.

The defendant’s contention that the representation that he was the owner of lot 89 is not a material one and cannot be impeached on the ground of fraud cannot be sustained. While the plaintiff could have ascertained the falsity of the statements by an examination of the title in the registry of deeds, she was not bound as matter of law to make such examination but could rely upon the positive assurances of the defendant that he was the owner of lot 89. It could be found that these assurances were calculated to divert her attention from an examination of the record which she might otherwise have made. Grimes v. Kimball, 3 Allen, 518 . Holst v. Stewart, 161 Mass. 516, 522 . Brady v. Finn, 162 Mass. 260, 266, 267 . Rollins v. Quimby, 200 Mass. 162 ; S. C. 206 Mass. 391 . Thomson v. Pentecost, 206 Mass. 505, 511 . Mignault v. Goldman, supra. There is nothing in the decision of Mabardy v. McHugh, 202 Mass. 148 , at variance with our conclusion.

The motion to direct a verdict for the defendant could not properly have been allowed, and the requests for rulings were rightly denied.

Exceptions overruled.