300 Mass. 138 | Mass. | 1938
These are two actions of tort for deceit, to recover damages for alleged fraud and misrepresentations in connection with the leasing of a garage. They were tried together to a jury, and, at the close of the plaintiff’s case, the judge directed a verdict for the defendant in each case. The cases come before us on the plaintiff’s consolidated bill of exceptions to the exclusion of certain evidence and to the allowance of the defendants’ motions for directed verdicts. It is agreed that the title to the premises involved was in the name of the defendant Jennie M. Hamilburg and that her husband, the defendant Maurice J. Hamilburg, hereinafter called the defendant, had full authority to act for his wife in connection with the lease and the negotiations leading up to its execution.
There was evidence that in the fall of 1932 the plaintiff, who had been in the garage business for twelve years, was “looking around for a garage location.” He was introduced to the defendant in October, 1932, through a broker, who died prior to the trial. The parties had not met before and the plaintiff knew nothing of the garage known as “Hamilburg’s Garage,” which was located on West Newton Street, in Boston. The plaintiff and the defendant had several conferences with relation to leasing the garage during October and the early part of November, 1932. During the negotiations the defendant told the plaintiff that the garage held three hundred “cars”; that he (the defendant) had one hundred twenty-five customers who were paying $10, $12, and $15 a month; that he had twenty-five “dead storage” customers who were paying $4 and $5 a month; and that he was taking in $125 a week from transient business, due to the Mechanics Building “bouts,” and was making $10,000 a year. The plaintiff asked permission to see the garage but the defendant refused, saying that “if they did not come to terms it will damage him because the help will start to steal.” The plaintiff did visit the location and “size[d] up the garage from outside.”
On November 19, 1932, the defendant Jennie M. Hamil
The plaintiff took possession of the garage on December 1, 1932, and discovered that the garage could not accommodate more than one hundred fifty automobiles. There were seventy or eighty-five "live storage” customers paying $8, $10 and $5 a month. Those paying $5 a month were “day storage” patrons. After the plaintiff entered into possession of the garage the receipts from transient business amounted to $25 to $30 a week. There was evidence that many of the names listed in the defendant’s books of accounts represented automobiles which had been abandoned and on which no rental had ever been paid. The plaintiff spoke to the defendant about the situation but paid the rent for December, 1932, and for January, February and March, 1933. He paid $350 on account of the rent for the month of April, 1933. Following this he had some conversation with the defendant lessor who then brought an action of summary process against him. Judgment for possession was entered therein by agreement on June 15, 1933, and the plaintiff vacated the premises that day. The plaintiff testified that he relied on the statements made to him by the defendant, that he had no means of ascertaining the number of customers or how much they paid except through the defendant. The jury could have found that the plaintiff ran the business at a loss.
The representations testified to by the plaintiff as having been made by the defendant were of existing material facts. Hedden v. Griffin, 136 Mass. 229. Dawe v. Morris, 149 Mass. 188, 191. In Powers v. Rittenberg, 270 Mass. 221, 223, 224, it was expressly held that representations as to the capacity of a garage, the number of automobiles in storage, the rents and the gross income and the profits could be found to have been material inducements to a lease of the
The defendants contend that the plaintiff is precluded from recovery in any event because “ he knew the capacity to be 150 cars before he signed the lease,” and because “he found out the statements which he claims Hamilburg made were untrue in three days” after he signed the lease on November 19, 1932, and because he remained in possession for some months after he discovered the true facts and until he was forced out by the judgment in summary process. The record does not sustain the statement of the defendants that the plaintiff knew the capacity of the garage to be for only one hundred fifty “cars” before he
Upon discovery of the fraud the plaintiff could have repudiated the contract or could affirm it and bring an action for damages. Whiting v. Price, 172 Mass. 240, 243. McKinley v. Warren, 218 Mass. 310, 313. McNulty v. Whitney, 273 Mass. 494, 500. Even if by remaining in possession of the premises for several months after learning of the fraud he lost the right to rescind, the loss of that right does not affect his right to recover damages caused by the. false representations. Andrews v. Jackson, 168 Mass. 266, 269. McKinley v. Warren, 218 Mass. 310, 313. Doujotos v. Leventhal, 271 Mass. 280, 283. McNulty v. Whitney, 273 Mass. 494, 500. Labagnara v. Kane Furniture Co. 289 Mass. 52, 55. Williston, Contracts (Rev. Ed.) § 1524. Moreover, waiver is the intentional relinquishment of a known right and the question ordinarily is one of fact and not one of law. McGrath v. Quinn, 218 Mass. 27, 29. Doujotos v. Leventhal, 271 Mass. 280, 283. The statement in the case' last cited, concerning the effect of an election to perform a contract, wholly executory, when the fraud was discovered, has no application in the present case where the jury could have found that the entire fraud
The question put by the plaintiff at the trial to a witness who had been qualified as an expert, as to the fair rental of the garage based on the volume of business done by the plaintiff, was excluded subject to the plaintiff’s exception. An offer of proof was made by the plaintiff that the witness would testify that, based on the volume of business done by the plaintiff, its rental value would be $250 a month or $3,000 a year. The same witness was allowed to testify that the fair rental value, had the representations of the defendant been true, would have been materially higher than the rental fixed by the lease. The measure of damages in an action for deceit, apart from interest, is “the difference in actual value between that which the plaintiff in fact got and that which he would have got if the representation had been true.” Piper v. Childs, 290 Mass. 560, 562, and cases cited. See also Stiles v. White, 11 Met. 356, 358; McKinley v. Warren, 218 Mass. 310, 314. “The value of property as represented and its actual value are questions of fact and a proper matter for expert opinion.” Sheffer v. Rudnick, 291 Mass. 205, 212. It follows that the evidence offered by the plaintiff tending to establish the rental value of the premises in the light of the actual capacity of the garage and the volume of business done by the plaintiff was improperly excluded.
On the plaintiff’s evidence, including that as to resulting damage which was improperly excluded, the jury could find that the representations made by the defendant were of material existing facts; that they were false and that the defendant knew them to be false; that they were made with intent that they should be relied on by the plaintiff and to induce him to act upon them; that he did rely and ■ act upon them; and that damage directly resulted therefrom. “There was evidence of all the essential elements of deceit.” Piper v. Childs, 290 Mass. 560, 562. The action of the judge in directing verdicts for the defendants was error, and the entry in each case will be
Exceptions sustained.