Maxwell v. Ratcliffe

Dec 31, 1969
Versions:
Cutter, J.

In this action of tort or contract Maxwell and his wife seek to recover damages alleged to have been sustained by misrepresentations concerning a house sold by Rateliffe to the Maxwells. 1 The case is before us on a bill of exceptions on which the Maxwells now present only the question whether the trial judge correctly directed a verdict for each of Ratcliffe’s two brokers, Jose Henriques and Marshall T. Slater, on the counts in tort against them, respectively. The jury could havе found the facts stated below.

The Maxwells on October 4,1964, stopped at Henriques’s real estate office. They found there Slater and his wife. Mrs. Maxwell told Slater she wanted to buy a small ranch house with specifications mentioned by her. Slater drove the Maxwells to 20 Davis Street, Woburn, and showed the Maxwells the house, including the cellar. Mrs. Maxwell “told Slater the cellar looked large enough to build a room there” to use as a playroom for her grandchildren. She “saw a hole in the cellar and sоmething sticking out of it.” She “asked Slater what it was, and he said he did not know.” Her husband “said it looked like a pumр.” She said, “[W]hat’s a pump doing here?” Slater “said he didn’t ‍​​​​​‌​​​​‌‌‌​​​​‌‌​​​​‌‌‌‌​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‍know but ... it didn’t look as if it had been used.” The cellar was thеn dry and there was no water in the hole. Mrs. Maxwell asked, “pQs the cellar dry?” Slater replied that the Ratcliffes “had a 9 x 12 rug on the other side of the cellar and it was dry.” She also “asked Slater why there wasn’t any bulkhead there, and he said that he didn’t know and that it’s dry.” She believed and relied upon Slater’s representation, and Henriques’s representations mentioned below, that the cellar was dry “in making her decision to buy the house, and would not have bought the house had she known that the representation was not truе because she wanted to build a room in the basement.”

Mrs. Maxwell went to the house again on Octоber 7 with her daughter and a friend, William A. Curry, “who was going to try to build the playroom.” They met Hen-riques at his office and were driven by him to the house. While in the basement “they asked Henriques why the pump was there, and he said he didn’t know, that they may have had water at some time.” Curry also “talked with Henriques about building the room and asked if the cellar was dry, and Henriques said the cellar was dry.” 2 Mrs. Maxwell then said that Slater “had told her there was a rug on the floor and she took it for granted that it was dry.”

The Maxwells bought the house and moved in on Novеm-i ber 7. About five to six weeks later water came into thei cellar “except during dry spells” and the рump “did ‍​​​​​‌​​​​‌‌‌​​​​‌‌​​​​‌‌‌‌​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‍not! take care of the water.” The playroom was never built because the cellаr “was wet . . . and the floor had water on it.” Some property was damaged by water.

Ratcliffe told а broker, one DiPanfilo, about the water problem when he went to him about selling the house. There was later a multiple listing of the house and the executive secretary of a real estate bоard sent information about this house to each member of the board’s multiple listing service, including Henriquеs’s office. The “listing stated in part that the list price was $16,500 and contained the following remarks: ‘Sump pumр in cellar, gets some water seepage periodically.’ ” It was agreed that Slater and Hеnriques were engaged as brokers for Ratcliffe in the sale of the house.

The evidence summarized above came from several witnesses called by the Maxwells. Verdicts were directed for Slаter and Henriques at the close of the plaintiffs’ case.

The evidence permitted the jury to conclude that both Slater and Henriques represented that the cellar was dry. They could infer that Slater and Henriques were associated in the same office and that each ‍​​​​​‌​​​​‌‌‌​​​​‌‌​​​​‌‌‌‌​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‍had, or should havе had, knowledge of the facts about “water seepage periodically” stated in the multiple listing. The state of the cellar was, in any event, an existing fact susceptible of knowledge. Yorke v. Taylor, 332 Mass. 368, 371. Pietrazak v. McDermott, 341 Mass. 107, 109. Powell v. Rasmussen, 355 Mass. 117, 119. The brokеrs’ statements, according to the testimony, were not mere expressions of opinion or statеments promissory in character. They could reasonably be viewed as flat statements that the cellar was dry. Cf. Yerid v. Mason, 341 Mass. 527, 529-531; Fogarty v. Van Loan, 344 Mass. 530, 531-532; Richman v. Seaberg, 353 Mass. 757, 758. Because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect ‍​​​​​‌​​​​‌‌‌​​​​‌‌​​​​‌‌‌‌​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‍to which they had been put on notice. See Kannavos v. Annino, ante, 42, 46-50.

Therе was ample evidence of reasonable reliance and damage. The brokers acted in respects in which they owed a duty, not only to their principal, Ratcliffe, but to the Maxwells with whom thеy dealt directly. See Coe v. Ware, 271 Mass. 570, 572-574.

The jury could conclude that all the elements of a cause of action in deceit had been proved. It was error to direct verdicts for the brokers.

Exceptions sustained.

Notes

1

Counts in warranty agаinst all three defendants and the ‍​​​​​‌​​​​‌‌‌​​​​‌‌​​​​‌‌‌‌​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​‌‍count against Rateliffe in tort have been waived.

2

Curry testified that Henriques, when asked if the pump was used, said, “to my knowledge, no; that ... he thought at one time they had a big storm or flood of some sort and put it in in case it happened again.”