269 Mass. 272 | Mass. | 1929
The plaintiff appealed from an order of the Superior Court sustaining a demurrer to its declaration in three counts. The appeal in so far as the third count is concerned has not been argued and is treated as waived. The action is stated to be in contract or tort but, as there are no allegations to support an action for breach of contract, the only question is whether it can be maintained as an action of tort.
The first count states in substance that in 1926, two
■ The plaintiff alleges that the defendant, to induce the plaintiff to execute the contract with it, and to release the
In the second count, after stating the facts leading up to the placing of a mechanic’s lien on the property by the plaintiff, it is alleged that at this time, when it appeared that the enterprise might result disastrously to all parties,
There was no contention by the plaintiff that the contract was executed by it by reason of any “fraud or misstatement as to the nature” of the contract signed “or of any fraud or misstatement as to the meaning” of the executed agreement, and there is no contention that any statement in the written agreement is not true or that the defendant has failed to comply with any of its terms. DePasquale v. Bradlee & McIntosh Co. 258 Mass. 483, 487. Bowditch v. E. T. Slattery Co. 263 Mass. 496. The writing in the case at bar shows on its face that it was intended to include the whole agreement. It comprises all
A statement by the defendant of its estimate of the cost of a new office building is an immaterial and collateral matter apart from some binding agreement to erect a building for the estimated price. When the statement was made so much was unknown concerning the kind of building to be constructed that neither party could have understood that the estimate was a statement of an existing fact upon which the other party was justified in placing reliance. Nash v. Minnesota Title Ins. & Trust Co. 159 Mass. 437. Thomson v. Pentecost, 206 Mass. 505. Boston Consolidated Gas Co. v. Folsom, 237 Mass. 565. The plans and specifications were not in existence, and when prepared they were to be subject to the approval of the Keelers. When the estimate was made no one could tell what plans and specifications would be approved. The cost of the building to be erected would also be dependent upon the terms of the contract which a corporation not then formed might be willing to execute. Both parties must have known that they would be bound by their contract, whether the building cost less or more than the estimate. A statement promissory in nature “is not properly a representation, but a contract.” Dawe v. Morris, 149 Mass. 188, 191. Knowlton v. Keenan, 146 Mass. 86.
It appears from the allegations that the plaintiff had the earlier contract for constructing a building for the hotel corporation, and there is nothing to show that the defendant was in a better position than the plaintiff to estimate the cost of a five-story building to be erected upon the constructed foundation with no facts as to the material
The representation that the defendant intended to manage and financially support the new corporation until January 1, 1933, was essentially promissory in nature, and the words “financially support” are of such general and indefinite meaning that the plaintiff would not be justified in placing reliance upon them. The case is distinguishable in its facts from Feldman v. Witmark, 254 Mass. 480.
So far as the second count is concerned, we are of opinion that the allegations as to a joint venture and as to the representations of friendship for Carlson made by the president and treasurer of the defendant do not establish a fiduciary ■ relationship and are not such as to give rise to a right of action in tort. Busiere v. Reilly, 189 Mass. 518, 521. The case is distinguishable in its facts as well as in the nature of the remedy sought from Reed v. A. E. Little Co. 256 Mass.
. 442. It does not appear that the defendant received for its compensation for the erection of the building more than the agreement with the plaintiff stipulated that it should receive.
Order sustaining demurrer affirmed.