Powers v. Fowler

157 Mass. 318 | Mass. | 1892

Knowlton, J.

The only question in this case is whether there was evidence which should have been submitted to the jury in support of the plaintiff’s declaration. The plaintiff alleged that the defendant made fraudulent representations to him in selling an interest in certain land described as being in Kansas City. A part of the plaintiff’s testimony was as follows : “ He [the defendant] spoke about a piece of land in Kansas City, thirty-five acres at eight dollars a front foot, or $63,000, — about $63,000 what it amounted* to, and be put into a syndicate ; to form a syndicate of a thousand dollars a share. He had sold them all but six, and asked me to take two or three of them, or more, or like of that. . . . He called at my house again, . . . and a third time. ... I took his word and told him I would take one share then, if everything was all straight and right, and he said it was. Then I says, 6 In case you don’t sell this land, how high is the taxes ? ’ And he told me not very high. I don’t remember. Then I says, 1 We won’t lose anything but the taxes and interest on our money.’ ” This conversation was in June. The plaintiff soon afterwards paid one thousand dollars, and took a receipt for it from the defendant. In the following winter a deed of trust was delivered to him by the defendant, which purported to give him one twenty-fourth interest in the real estate, subject to mortgages amounting to $38,456, and which recited an agreement on his part to assume and pay one twenty-fourth part of this mortgage indebtedness. Subsequently an assessment was made for a payment towards the mortgage debt, and the plaintiff, in describing an interview with the defendant in regard to it, testified as follows: 16 When he came in he spoke to me about sending the money on this assessment, and I told him I did n’t propose to send it, because there was a mortgage on it that he did not represent to me at the time he sold it to me. I told him I understood it was all clear, or at least he represented it so to me. He said the property was all right, just as he represented. I told him if it was, to give me back my thousand dollars, and I would give him the interest on it. He said he would if he had the money, because he considered it all right.” In describing a later interview between the plaintiff and the defendant and Voorhees, a partner of the defendant in the real estate transaction, the plaintiff said that he made a statement to Voorhees and the defendant of what the defendant told him when he bought the share. This is his account: “ He came to my house and told me that they had bought this land, thirty-five acres, in Kansas City, at $63,000. . . . At eight dollars a front foot, which amounted to $63,000. . . . About $63,000, or sixty-two and some odds. They had bought it at that price, and they said they had cut it up into shares, at a thousand dollars a share; that they had sold all but six, and wanted I should buy one or more of them, or two or three, and I objected. The next time we had a similar conversation, and the third time Mr. Fowler said he had disposed of all but two, and finally I told him I would take one, if everything was all straight and right, and the way he represented it. I asked him about the taxes, in case we did n’t sell the land that year. Mr. Fowler told me, but I don’t remember. It wasn’t very high. Then I said, ‘In case you do not sell it, we -would have nothing to lose only the interest on our money and the taxes, which would n’t be much.’ I said to Mr. Voorhees at the time that was where the trouble was between Fowler and myself, because he did not explain the thing and tell me about the mortgage at the time he sold it to me. Mr. Voorhees said to Fowler, Did n’t you show Powers a copy or certificate of title of the plan of that lot? . . . Mr. Fowler said, No, he didn’t think it would make any difference between him and Powers. I said, that was where all the trouble comes. If you had shown me that, you know 1 would never have let you had a dollar.”

It was proved that the real estate was about thirty-five acres of land, situated, not in Kansas City, but in Independence, nine miles from there; that it was bought for $35,000 by the firm of Voorhees, Gregory, and Fowler, of which the defendant was a member, and the title was taken by Gregory, who gave $1,000 in cash and mortgages to cover the remaining $34,000. A few days later the title was transferred through a third person from Gregory to Voorhees, another member of the firm, for a consideration stated in the deed to be $62,456, Voorhees having previously taken a mortgage on the property such as to make the mortgage indebtedness appear of record to be $38,456. The firm raised money from the sale of certificates of trust issued by Voorhees, and with it paid off a small part of the mortgage indebtedness, and divided the balance of the proceeds among them. None of them ever put any money into the property except the $1,000 which was paid at the time of the purchase, and afterwards reimbursed from the proceeds of the sale of certificates of trust. The testimony of experts in real estate tended to show that the real value of the property at the time was from $17,500 to $20,000, and that it is now worth not more than $9,000.

We are of opinion that the plaintiff was entitled to go to the jury on the question whether the fair import of the defendant’s statements was not that the property, amounting in value to about $63,000, had been bought and paid for, and was to be divided into sixty-three shares of $1,000 each, so that each holder of a share would own one sixty-third part of the property, free from any mortgage encumbrance. If that had been true-, the purchaser of a share would have had a very different interest from one who took one twenty-fourth of the property while it was mortgaged for much more than it was worth, and who at the same time agreed to assume his proportional part of the mortgage indebtedness. The defendant contends that there is no allegation in the declaration under which a recovery for such a fraudulent representation can be had; but we are of opinion that the fifth count is sufficient for this purpose.

We are also of opinion that the representation that the land was in Kansas City, when in fact it was in a small city nine miles from there, was material. The plaintiff testified that the former place was represented to have from 170,000 to 180,000 inhabitants; and in a purchase of land with a view to sell it as a speculation, its location in a populous neighborhood is ordinarily regarded as enhancing its value. No evidence was offered to show particularly the amount of damages, but we are of opinion that there was enough to entitle the plaintiff to go to the jury.

Exceptions sustained.