286 Mass. 311 | Mass. | 1934
These are actions of tort for deceit based upon the misrepresentation alleged to have been made in March, 1922, by the defendant in each case that he was authorized to employ the plaintiff for the purpose of procuring a customer for the business, assets and capital stock of S. Slater & Sons, Incorporated, hereinafter referred to as the Slater company. At the time of the alleged misrepresentation, that company was engaged in the manufacture of woollen and cotton goods in the town of Webster, and the plaintiff was in the' real estate and insurance business in
The plaintiff testified that on March 4, 1922, in response to a telephone call he went to the office of the defendant Bartlett whom he had known for fifteen years, and that Bartlett said that he had received word from the defendant Brown that the Slater mills were to be sold and that he was authorized to employ some one “to sell them and find a customer.” The plaintiff replied that he would be “glad to handle it” and could probably find a customer. Bartlett told the plaintiff to get busy, that the plaintiff was the only broker authorized to sell the property and that with respect to Bartlett’s authority the plaintiff could see Brown the following Monday. The plaintiff did see Brown on March 14, 1922, and Brown told the plaintiff to go ahead and get a customer and he would get a suitable commission if he found a customer; that he was the only authorized broker; that the best prospect was the American Woolen Company; and that all the plaintiff had to do was to get some one interested as a purchaser and the plaintiff would get a suitable commission when the deeds were passed. The plaintiff saw some of the officers of that company and as a result, on March 15, 1922, wrote to its president, Wood, that through the courtesy of Bartlett he was writing to inform Wood that the Slater company would consider an offer of $2,188,985 for their plants. Wood replied by a letter dated April 10, 1922, stating in substance that during the last few months another person had called on him several times in regard to an alleged desire of the Slater interest to sell out but that he had then declined to consider any proposition that did not come through Brown; that his attitude was the same with regard to the proposal in the plaintiff’s letter and that if the property was for‘sale he would consider only a proposition coming from Brown.
In the following year on April 24, 1923, after negotiations between the Slater company and Wood as president of the American Woolen Company, a contract of sale was entered into by the two companies. On April 28, 1923, the plaintiff sent a letter to H. N. Slater, who was then the president of the Slater company, stating it to be his understanding that a sale of part of the Slater plant was to be consummated on May 1, and asking for a conference with regard to a commission. He wrote that he had “submitted the proposition to the American Woolen Company in March 1922 as Agent,” that the matter was placed in his hands by Bartlett and that the “agency was confirmed” by Brown with an agreement on behalf of the Slater company to pay the plaintiff a commission if the transaction was consummated. He received a reply from Slater dated April 30, 1923, stating in substance that the latter saw no necessity for a conference, that Bartlett absolutely denied placing in the plaintiff’s hands the sale of the property or authorizing him in any way to act as agent or broker and that Brown denied making any agreement.on behalf of the Slater company to pay the plaintiff a commission. The plaintiff testified that on the day of the receipt of this letter he showed it to Bartlett who said he would not do the plaintiff any harm and that he was entitled to his commission.
It was agreed at the trial that on June 11, 1923, a deed conveying five parcels of land and including buildings and machinery was executed and delivered by the Slater company
One of the essential elements which must be proved by a plaintiff in an action for deceit is that the wrong of the defendant caused him damage. Goodwin v. Dick, 220 Mass. 556. Although all other elements may be established legal liability does not exist in the absence of such proof. Des Brisay v. Foss, 264 Mass. 102, 111. Deceit is “not an absolute wrong, for which the injured person may recover at least nominal damages, like one who sues for breach of contract or the invasion of an absolute right.” Brackett v. Perry, 201 Mass. 502, 504. Freeman v. Venner, 120 Mass. 424, 427. No actionable wrong has been done unless provable damage has resulted. Gurney v. Tenney, 197 Mass. 457, 465. Lewis v. Corbin, 195 Mass. 520, 524. Randall v. Hazelton, 12 Allen, 412, 415. Where a plaintiff does not prove that he is worse off than if there had been no misrepresentation he has not made out a case of deceit. Brackett v. Perry, 201 Mass. 502. Dawe v. Morris, 149 Mass. 188. Bradley v. Fuller, 118 Mass. 239. Whitney v. Blanchard, 2 Gray, 208. If, as represented by the defendants, they had authority to employ the plaintiff, according to the plaintiff’s testimony as to what was said by them, it was an employment to procure a customer who was ready, able and willing to purchase the property on terms satisfactory to the Slater company. Boyle v. Goldenberg, 267 Mass. 24. Under such an employment if a plaintiff is successful he is entitled to a commission as his only compensation, if he does not succeed he is not entitled to compensation for time or money spent by him in the effort to procure such a cus
There is another reason which prevents the plaintiff’s recovery. His causes of action in tort for deceit accrued at the time the defendants made the representations which the plaintiff testified he relied upon, that is, in March, 1922, and he did not bring these actions until more than seven years later. The statute of limitations, which was pleaded by the defendants, restricts the time for bringing actions of tort to a period of six years from the accrual of such actions (G. L. c. 260, § 2). The statute is here a complete bar unless as provided in § 12 the defendants fraudulently concealed from the plaintiff the fact that he had such causes of .action, in which event the statute of limitations would run from the time that the plaintiff discovered that fact. The evidence does not warrant the finding that he comes within this exception to the general statute.
In its original form (Rev. Sts. c. 120, § 11) the section which is now G. L. (Ter. Ed.) c. 260, § 12, was drafted by commissioners appointed to revise the statutes, it being their stated purposes with reference to this .section “to settle the rule definitely” since the decisions in this Commonwealth up to that time were not “in all respects precisely alike,” to extend the principle “to actions of every description; but to confine it to cases in which ... the cause of action is fraudulently concealed by the defendant from the knowledge of the plaintiff.” (See note to § 11, Rev. Sts. c. 120, in Report of Commissioners, 1834. See also note to § 11, R. L. c. 202, Report of Commissioners, 1901.) Our decisions since the passage of this section have consistently proceeded on the theory that its application must be so confined. If the cause of action be deceit there must be after its accrual a fraudulent concealment by the defendant of the initial fraud on which the cause of action is based. See Walker v. Soule, 138 Mass. 570. The silence of a defendant, his failure to disclose his deceit to the plaintiff,
The fraud which conceals a cause of action within the meaning of the statute “must be actually accomplished by positive acts done with the intention to deceive” the plaintiff. Maloney v. Brackett, 275 Mass. 479, 484. The character of the fraud which accomplishes such concealment has been described as “active steps taken” by the defendant, Manufacturers’ National Bank v. Perry, 144 Mass. 313, 314; “Positive acts of actual and not merely constructive concealment,” O’Brien v. McSherry, 222 Mass. 147, 150;
Fraudulent acts or words which have once furnished the basis for a cause of action for deceit may be of such a character, if thereafter repeated and the deceit of the defendant thereby continued, as to amount to a fraudulent concealment of the cause of action, Dean v. Ross, 178 Mass. 397; Jekshewitz v. Groswald, 265 Mass. 413, but where there is no fiduciary relationship a later reiteration of the original misrepresentations made to a plaintiff who has since obtained knowledge of their falsity, is not such fraudulent concealment. Brackett v. Perry, 201 Mass. 502. “A cause of action cannot be said to be concealed from one who has a personal knowledge of the facts which create it.” Sanborn v. Gale, 162 Mass. 412, 414. When the plaintiff in his letter of April 28, 1923, gave notice to the Slater company of his claim to a commission he further stated the basis of that claim, namely, that the defendant Bartlett had placed the sale of the property in his hands and that the defendant Brown had made an agreement “on behalf” of the company to pay him a commission. The reply of the company refusing tó confer with him stated, in terms that the plaintiff himself had used in his statement of the ground of his claim, the denial by both defendants of his assertions as to their dealings with him including the specific denial that an agreement had been made “in behalf” of the company. There appears to have been no further communication by him with the company. There was by the letter
Since the evidence did not permit a finding that there was fraudulent concealment of the plaintiff’s causes of action the statute of limitations is a bar to recovery and verdicts for the defendants were rightly ordered.
Exceptions overruled.