162 Mass. 260 | Mass. | 1894
The amended declaration in this case is inartificially drawn, but it was not demurred to, and we are of opinion that it sets forth a cause of action with sufficient precision to support a verdict. Fraud is undoubtedly the gist of the action, and in some form must be alleged and proved. The declaration sets forth certain facts to have been stated by the defendant, and their falsity, and also alleges the defendant’s knowledge of their falsity. See Litchfield v. Hutchinson, 117 Mass. 195; Holst v. Stewart, 154 Mass. 445. The representations made were of material facts which were susceptible of knowledge; and the fraudulent intent of the defendant was an inference which the jury was entitled to draw. Collins v. Denison, 12 Met. 549.
The question of most difficulty in the case arises from the fact that the misrepresentations were concerning facts, the truth or falsity of which could have been ascertained by the plaintiff had she gone to the farm before taking a deed thereof. The general rule undoubtedly is “ that one bargaining with another must use reasonable diligence to discover for himself facts obvious to an ordinary observer, of which the means of knowledge are equally available to both parties”; and that, if he fails to do this, he cannot maintain an action of deceit for the misrepresentation of them. Holst v. Stewart, 161 Mass. 516, per Knowlton, J. In the same case, however, it was said: “But in the application of this rule the circumstances of each case should be considered to determine whether the plaintiff has been guilty of such inexcusable negligence as should preclude him, under a general rule of public policy, from having a remedy against one who has fraudulently abused his confidence.” And
In the case at bar the jury would have been warranted in finding that the farm which the plaintiff was induced to buy, though in the same town where she and the defendant lived, was in a remote part thereof, with which she was unacquainted ; that she proposed on three occasions to the defendant to take her there, and he promised to take her on some subsequent day, but put her off on various pretences; that he hurried the matter to completion within forty-eight hours, and thus deprived the plaintiff of time for inquiry and examination; and that she was justified by the defendant’s position in life and her long acquaintance with him in reposing confidence in his statements. The facts are certainly as strong in this case as in Holst v. Stewart for departing from the general rule, and in submitting the question of the plaintiff’s negligence to the jury.
The remaining question is as to the admissibility of the evidence of the sale of the property, fifteen months after the conveyance to the plaintiff, under a foreclosure of a mortgage. The fact that the sale was made so long after the purchase by the plaintiff does not render the evidence incompetent. Roberts v. Boston, 149 Mass. 346, 354. The value of the testimony depended largely, if not entirely, upon the relative condition of the farm and buildings at the time of the purchase by the plaintiff and at the time of the sale, and such evidence is usually introduced. Brigham v. Evans, 113 Mass. 538. Croak v. Owens, 121 Mass. 28. The only exception of the defendant to the admission of the evidence is, that no testimony had been introduced showing the relative condition or value at the different times. While the presiding justice might have excluded the evidence until further testimony had been put in, we are of opinion that it was within his discretion to admit the evidence of -the sale at the time it was admitted; and at the close of the evidence, if no testimony had been put in bearing upon the relative condition or value, the defendant might then have requested that the evidence of the sale be stricken out, and the jury instructed to disregard it. This the defendant did not do; and the order must be, Exceptions overruled.
