38 Mass. App. Ct. 926 | Mass. App. Ct. | 1995
David and John Fernandes were in the market for a site on which to build a retail furniture store and an accompanying warehouse. Ruth Brown, a real estate broker acting for Realty Search, Inc., introduced them to a parcel on South Street West in Raynham belonging to Paul and Joyce Rodrigue. Together with Brown, the Fernandeses walked and inspected the site. The Rodrigues had told Brown they thought their parcel contained five acres. Brown checked with the town records and found two sources of information about the size of the locus: a tax bill and a copy of the deed to the Rodrigues on file with the assessors. The bill described the locus as containing 4.2 acres; the deed description did not recite square footage or acreage, but there was a notation at the top right hand corner that said “4. Ac.” David Fernandes on deposition testified that Brown had
In their complaint, the Fernandeses allege breach of contract and deceit against all defendants and a violation of G. L. c. 93A by Brown and Realty Search, Inc. The Fernandeses appeal from the allowance of the defendants’ motions for summary judgments. We affirm.
1. The contract claim. As to the contract claim, which lies seriously only against the Rodrigues,
2. The misrepresentation claim. The theory of the plaintiffs’ negligent misrepresentation claim is that the defendants by reasonably diligent inquiry would have known that the locus contained a good deal less than four acres. See Yorke v. Taylor, 332 Mass. 368, 374 (1955); Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 43 (1980); Henderson v. D’Annolfo, 15 Mass. App. Ct. 413, 422 (1983); Acushnet Fed. Credit
3. Claim under c. 93A. As to the c. 93A claim, we think it is absorbed in and vanishes with the misrepresentation claim. Chapter 93A does not make actionable the failure to disclose a fact unknown to the person who the plaintiff thinks ought to have disclosed it. Underwood v. Risman, 414 Mass. 96, 101 (1993). See also Lawton v. Dracousis, 14 Mass. App. Ct. 164, 170 (1982).
Judgments affirmed.
The brokers had an agreement with the sellers, not the buyers. The participation of Realty Search, Inc., in the purchase and sale agreement (which was on the Greater Boston Real Estate form) had to do with its entitlement to a commission and duties as escrowee of the deposit.