Burns v. Lane, 138 Mass. 350

138 Mass. 350 | Mass. | 1885

Holmes, J.

If the representation that the plaintiffs’ fish traps were attached had been a statement of the effect of certain facts mutually understood to be known to both parties, as, for instance, that they were attached, although they could be immediately removed, and yet no possession had been taken of them, the representation would then have been a representation of law, and the question would have arisen which has been argued for the defendant, whether an action will lie for a false representation of law. On that question we express ho opinion. Compare Hirschfield v. London, Brighton, & South Coast Railway, 2 Q. B. D. 1, and Upton v. Tribilcock, 91 U. S. 45. But a simple representation that goods are attached, without more, such as the plaintiffs testified to, is a representation that facts exist which justify the statement.

The plaintiffs testified that one of them lived within sight of the field where the traps were spread, and saw them a number of times; that a son and employee of the other crossed the field where they were almost every day, and frequently talked with his father about the traps; and that none of them ever saw any one in possession of the traps as keeper. But this evidence does not necessarily cut down the effect of the defendant’s representation to misleading the plaintiffs on a point of law. For it is technically consistent with their having believed that the defendant had possession of the traps. It does not appear what the son told his father on this point, or who was the owner of the field, or what his relations were to the parties, or whether there were not houses so near that the nets could be watched from them, or that the plaintiffs may not have believed that the defendant, if he did not watch the nets continuously, at least kept charge of them as against the plaintiffs by appearing from time to time. See Bond v. Padelford, 13 Mass. 394. Conn v. Caldwell, 1 Gilman, 531.

All these possibilities are open on the bill of exceptions; and as, under the instructions of the court, the jury could not have found for the plaintiffs on the count in deceit, unless they found that the plaintiffs were in the exercise of due care in believing the defendant’s statement, we cannot indulge in conjectures on the strength of seeming improbabilities, in the hope of doing substantial justice. The representations were alleged to have been repeated through the whole time that the traps were being destroyed; and the instructions of the court and the finding of the jury must be taken to extend to the plaintiffs’ belief during the same period. Moreover, if the plaintiffs justifiably believed that the defendant had attached and taken charge of the traps on the faith of his representation to that effect, they were not bound to verify the fact, or to see whether the attachment had not been abandoned. They had a right to rely on the representation, and on the continuance of the attachment, so long as they did so in good faith. The cases cited for the defendant are cases of representations concerning the manifest quality of goods offered for sale and presented for inspection, where the buyer had no right to rely on the representation at all unless he required a warranty. Brown v. Leach, 107 Mass. 364, 368, and cases cited. See Savage v. Stevens, 126 Mass. 207. The standard of good faith required in sales is somewhat low, not only out of allowance for the weakness of human nature, but because it is not desirable to interfere too much for the purpose of helping men in their' voluntary transactions more than they help themselves, and because, if they deem the representation essential, they can make it so by requiring a warranty. But it would be going too far to say that a party to an involuntary relation believes at his peril a representation made for the avowed purpose that he should act upon it, merely because its truth, or more strictly its continuing to be true, may depend upon visible facts, and because, if he knows the law, as he is presumed to do, he can go to the spot and verify those facts for himself. Brown v. Castles, 11 Cush. 348. David v. Park, 103 Mass. 501.

It was suggested, rather than pressed, that as the traps, if not attached, were in the possession of the plaintiffs, they must be taken to have known whether they were or not. But a man may retain or lose possession without knowing it, and the question whether he has done either may therefore be made the subject of a fraudulent representation.

The foregoing considerations dispose of the argument which has been pressed upon us, and we think are sufficient to dispose of the exceptions, with the further remark, that the evidence of the defendant’s statements which warranted the jury in finding him guilty of deceit also warranted a finding that he did attach in fact, and was liable on the other counts, if the jury believed that the statements were not only made, but were true.

If there is any ground for the suggestion made by the defendant for a different purpose, that the traps could not be immediately removed, (Pub. Sts. c. 161, § 69,) there was less difficulty in believing that they had been attached originally, even if the attachment was abandoned after the traps were spoiled. And if the plaintiffs believed the same thing, although wrongly, it was a further excuse for believing that the traps were attached, even when they saw no one in charge of them. But we do not rely on this consideration. Exceptions overruled.