173 Mass. 491 | Mass. | 1899
This is a bill in equity, filed November 22,1895, by the purchaser of certain personal property against the sellers and.Gusteen I. Kenerson, their agent, to rescind a sale on the ground of false and fraudulent representations made by Kenerson, who effected the sale. The property consisted of certain h'orses and wagons and other articles used in an express business.
The master has found the following facts. The negotiations for the sale extended over ten days or a fortnight, and resulted
The master further found that during the negotiations and before the delivery of the bill of sale and the payment of the consideration thereof, Gusteen I. Kenerson made the following false and fraudulent representations. 1. After stating that at a prior time he had sold the property, he stated to the plaintiff that about January 1, 1895, he paid therefor $2,000. 2. That he stated to the plaintiff that a man named Moore, engaged in the express business in Boston, was seeking to buy the business, and had offered him $2,000 for it, which he was to pay if he could raise the money. 3. That he had ten regular customers in the business, who each paid ten dollars a month, and that one customer named Marble paid sixty dollars a month. 4. That the business was earning him net at the rate of $2,500 a year.
The master further found that each of these statements was known by Kenerson to be false when he made them, and that they were made to induce the plaintiff to enter into the proposed trade; and that they were believed by the plaintiff, and influenced him to make the purchase.
The plaintiff took possession of the property under his bill of sale, September 9,1895, and the express business was carried on by two brothers of the plaintiff for one week. At the end of the week the plaintiff learned that he had been deceived and defrauded, and on September 16 had an interview with the de
The master further found that the fair market value of all the property conveyed by the bill of sale of September 9,1895, including the good will and all interests thereby conveyed, was at that time $700.
The master also found that on the facts stated the plaintiff was entitled to a decree that the note and mortgage for $1,000 were obtained by fraud, and should be surrendered to the plaintiff ; and that the defendants should repay the plaintiff the sum of $500.
Subsequently the case was heard on exceptions to the master’s report, and a decree entered in accordance with the master’s findings, with costs. The case is before us on an appeal by the defendants from this decree.
It is contended by the counsel for the defendants, in the first place, that some of the findings of the master are not warranted by the evidence. This point is not much insisted upon, and we are referred merely to the evidence in defence. While there was contradictory evidence on some points, we are of opinion
The defendants contend that the representations amounted merely to dealers’ talk, which the law cannot take notice of. But the court of recent years has shown no disposition to extend the decisions in favor of vendors’ representations beyond the limits to which they have gone. Way v. Ryther, 165 Mass. 226, 229. Kilgore v. Bruce, 166 Mass. 136, 138. Andrews v. Jackson, 168 Mass. 266, 268. In the present case, Gusteen I. Kenerson assumed to be dealing with the property as an owner, while he was merely an agent of the other defendants. His statement that he had sold the property and bought it back was false and fraudulent, and while the price which he said he paid probably falls within the rule of dealers’ talk, (Gassett v. Glazier, 165 Mass. 473, and Way v. Ryther, ubi supra, and cases cited,) yet, excluding the price, we have left representations which must be deemed material. The statement that Moore was seeking to buy the property and had made an offer of $2,000 for it, which he was to pay if he could raise the money, seems to us to be merely dealers’ talk. Brown v. Castles, 11 Cush. 348.
The statement by Kenerson that he had ten regular customers in said business who each paid him ten dollars a month, and that one customer named Marble paid sixty dollars a month, is not open to the objection that it is a promissory representation as to the future, nor can it be regarded as mere dealers’ talk. It relates to a very material fact on which the plaintiff had the right to rely. The same is true of the statement that the business was earning him net at the rate of $2,500 a year. Smith v. Everett, 126 Mass. 304.
The remaining question is whether the plaintiff is entitled to rescind the sale. We see no reason why he is not. He discovered the fraud at some time during the first week after he took possession of the property. At the end of the week he notified Kenerson, and demanded back the money paid and the note given by him, and offered to return all the property. The latter refused to consent to any rescinding of the contract. The plaintiff then tested the matter further, and carried on the business for two months, when he made an absolute rescission, and