201 Mass. 502 | Mass. | 1909
The plaintiffs contend that their cause of action did not accrue and that the statute of limitations did not begin to run until October, 1902, when Jenks recovered judgment against them. They rest this contention on the well recognized doctrine that in an action to recover damages for deceit the plaintiff must show not only that deception was practised upon him, but that it was practised to his loss; that this was not an absolute wrong, for which the injured person may recover at least nominal damages, like one who sues for a breach of contract or the invasion of an absolute right, but that it was merely ground for an action on the case, ex delicto, in which recovery can be had only upon proof of both injury and damage. Wellington v. Small, 3 Cush. 145, 149. Hayward v. Draper, 3 Allen, 551, 552. The gist of the action is the damage which has been wrongfully done to the plaintiffs. Boston v. Simmons, 150 Mass. 461, 463. Fottler v. Moseley, 179 Mass. 295, 298. Lewis v. Corbin, 195 Mass. 520, 524. The same rule is applicable to an action to recover for personal injuries caused by the negligence of another. Sullivan v. Old Colony Street Railway, 200 Mass. 303.
But in this case the damage done to the plaintiffs was not that they were made liable to Jenks for a commission. That liability would have existed if the defendant in this action had not been guilty of any fraud. The damage which the defendant intended to do and actually did to the plaintiffs was to persuade the latter, by reason of the false representations made by him, to sell their property to the defendant for $2,000 less than the price which they otherwise would have demanded; and that damage was suffered, and the plaintiffs’ cause of action against the defendant became complete, as soon as the plaintiffs bound themselves to convey the land to the defendant for the inadequate price, and carried out that agreement. That is the principle of Kilgore v. Bruce, 166 Mass. 136, in which the fraud was practised upon the buyer instead of the seller.
But if the plaintiffs’ cause of action was fraudulently concealed from them by the defendant, then the statute of limitations would begin to run against the plaintiffs only when- they had
But the defect in this contention is that the plaintiffs had full information of the true state of the facts from Jenks and Wood in August, 1899, and the fact that they chose to believe the reiterated statements of the defendant rather than those of Jenks and Wood would not do away with the fact that they had then as full information as they appear to have gained at any later time. Full means of detecting the fraud which had been practised upon them, under circumstances which put them upon inquiry, is equivalent to actual knowledge. Farnam v. Brooks, 9 Pick. 212, 245. Nudd v. Hamblin, 8 Allen, 130, 131, 133. The mere reaffirmation of the fraudulent representations which gave the right of action, especially when made by one who is under no fiduciary duty and to one who has already received full information to the contrary, scarcely can be called such a fraudulent concealment as will justify inaction by one who has a right of action for the original wrong. Sanborn v. Gale, 162 Mass. 412. Walker v. Soule, 138 Mass. 570. Jackson v. Buchanan, 59 Ind. 390. And see further the cases collected in 19 Am. & Eng. Encyc. of Law, (2d ed.) 251, and 25 Cyc. 1186.
The plaintiffs’ cause of action did not accrue within the six years preceding the date of their writ, and the jury would not have been warranted in finding that it had been fraudulently concealed from their knowledge by the defendant. The trial judge correctly ruled that the statute of limitations was a bar to the maintenance of the action. According to the terms of the report, there must be
Judgment on the verdict.
