Russell v. Bryant

181 Mass. 447 | Mass. | 1902

Morton, J.

This is a bill to enjoin the defendant from transferring, foreclosing or collecting a mortgage given to her by the plaintiff on certain furniture and carpets which, with the good will of a boarding and lodging house, the plaintiff was induced to purchase from the defendant, by means of certain alleged false and fraudulent representations made by her to him. There is also a prayer that the plaintiff’s damages may be determined, and the defendant ordered to pay the same, and that, in default thereof, the mortgage may be cancelled and reduced by the amount so determined to be due the plaintiff.

The principal allegation in the bill, in regard to the character of the representations, describes them as false but not as fraudulent. And there is no allegation that the defendant knew them to be false. But later in the bill the representations relied on are referred to more than once as false and fraudulent, and it seems to us that the issue presented was that of a sale and purchase induced by false and fraudulent representations, and that it must have been so understood by the parties. The case was sent to a master. He does not find in terms that the representations were false or fraudulent. But he finds that the plaintiff is entitled to relief on all the evidence in the case, and that the defendant made the representations relied on and that they were material and induced the plaintiff to make the purchase. Taking the report in connection with the bill we think that the fair import of the master’s findings is that the representations were found by him to be false and fraudulent.

The defendant took exceptions to the master’s report. They were overruled and the master’s report confirmed and a final decree entered for the plaintiff. The defendant appealed.

The first exception was to a finding by the master that a letter from the lessor to the defendant, on which the defendant relied to show that she had the written consent of the lessor to the transfer of the lease, contained “ no positive promise to accept even a responsible-tenant.” The ground of the exception is that the master was not authorized by the rule to pass on any question of law. The interlocutory decree referring the case to a master directs that “ the usual order of reference ” shall issue. What that is we are not informed nor what the terms of the order in fact were. But the ruling can have done the defendant no harm, because we think that it was plainly right. The most that can be said of the letter, it seems to us, is that the writer was considering the matter, and might consent to a transfer if the tenant was satisfactory, but was not ready to make and did not make any positive agreement to do so.

The next exception is to the refusal of the master to find that the plaintiff was a responsible party. If there was no promise on the part of the lessor to consent to an assignment of the lease, it made no difference whether the plaintiff was responsible or not. It was an immaterial matter. If it was material we do not see how it can be said that the refusal of the master to find that he was responsible was clearly erroneous. ✓

The last exception is to the finding of the master that the plaintiff was entitled to relief, and to a discharge of the mortgage by way of damages. It is sufficient to say, we think, that we discover no error in the finding. It has been argued that the damages were excessive. But there is nothing to show that there was any error as matter of law in their assessment.

At the request of the defendant the master reported certain questions of law.

1. After the lessor had refused to accept the plaintiff as a tenant, and had brought an ejectment suit against him, and after the plaintiff had seen the letter from the lessor to the defendant on which the defendant relied to establish the written consent of the lessor to a transfer of the lease, the plaintiff applied to the defendant for leave to remove the mortgaged property from the premises where it was, and the defendant consented to such removal. The defendant contends that this action on the part of the plaintiff was a ratification of the sale and a waiver of any objection that the sale was procured by false and fraudulent representations. The mortgage contained a clause prohibiting the removal without the consent of the mortgagee. There was no claim that the mortgage was not valid. To have removed the property without the consent of the mortgagee would have been a breach of the mortgage. And the plaintiff well may have taken the course which he did for the purpose of reducing his loss as much as possible. It cannot be said as matter of law, we think, that his action constituted a ratification of the sale and a waiver of the false and fraudulent representations.

2. The defendant was notified to take upon herself the defence of the ejectment suit but did not do so. The owner of the house paid the plaintiff $100 less the costs to secure his removal by June 1. It does not appear that this was not before final judgment could have been obtained and execution issued. The defendant contends that the letter from the lessor to the defendant above referred to constituted a good defence to the ejectment suit, and that the plaintiff voluntarily yielded possession for a valuable consideration. It is not suggested that there was any other defence to the ejectment suit. The letter referred to contained no promise on the part of the lessor to transfer the lease, and therefore would not have constituted a defence either at law or in equity. The plaintiff ultimately would have been obliged to vacate, and is not to be prejudiced because he made the best terms that he could.

We think that the decree should be affirmed.

So ordered.