291 Mass. 205 | Mass. | 1935
This is an action of tort for alleged deceit in the sale of real estate. No question of pleading is raised. The record contains substantially all the evidence in. the
The evidence thus considered warranted a finding by the jury of the following facts: On April 10, 1925, the defendant was the real (though not the record) owner of a parcel of registered land which stood in the name of his son-in-law, Edward Ansin. On that date the defendant received from said Ansin a registered first mortgage, in statutory form, on the property for $45,000 purporting to mature in three years. On the same date (August 10, 1925?) the defendant made a registered assignment of said mortgage and the note secured thereby to Hingham Savings Bank. This assignment is absolute in form and contains no recital of the amount of the consideration for the transfer. Early in November, 1925, the plaintiff, as a prospective purchaser, saw and talked with a broker, with whom the'property had been listed, and the broker informed him that the price was $60,000 and that there was a mortgage of $45,000 on it, but that he did not know who the mortgagee was. Subsequently, on November 17, 1925, in the course of an interview the plaintiff inquired of the defendant as to “who held the first mortgage on that property” and the defendant answered “The Hingham Savings Bank.” The defendant
On said cross-examination the plaintiff testified that he was thirty-five years of age, a dentist by profession, though his grandfather had been a real estate broker for thirty years. The extent of his (the plaintiff’s) real estate experience was in the purchase of three other properties all of which were subject to savings bank mortgages. The matter of the mortgage was important to him and he would not have bought the property if he had known that the mortgage was originally made to a private party. He did not seek information from the bank “concerning the mortgage” because he believed the defendant. His attorney was employed “only to examine the title.” Prior to the purchase he had seen the property, “had discussed it with his uncle and another and had formed the idea that it was worth about $60,000.” The plaintiff’s attorney, on cross-examination, testified that he had sent his partner to examine the record, “the certificate of title,” but that the only information he got from him “was that there was a $45,000 mortgage of record held by the bank.” A memorandum was introduced and shown the witness which indicated that the partner had made a note of the assignment of the mortgage to the bank, but it did not show that the mortgage was taken as collateral security for that amount. The plaintiff’s attorney in this connection testified that his partner did not bring back his report until after the consummation of the sale agreement; that he did not remember
Real estate experts called by the plaintiff testified, among other things, that if the defendant’s representations had been true the fair market value of the property would have been $57,000, but with a mortgage running to a private individual and an assignment of such mortgage to a savings bank as collateral, the value of the property was $48,000; that the way in which property is financed is very important to a buyer, and the fact that there was a savings bank mortgage on the property would add $9,000 to its market value and that the value would not be so enhanced if the bank took the mortgage as collateral for a loan.
On all the evidence, the facts and the inferences of fact which the jury could properly find, it is plain they could find that the defendant knew that the savings bank did not hold the $45,000 mortgage as an original loan and that it did hold that mortgage as collateral security for a loan of $30,000. The statement that the $45,000 mortgage was held by the Hingham Savings Bank, taken in conjunction with the defendant’s statement that the property was worth more than the amount of the plaintiff’s original offer of $55,000 because of the investment by a savings bank in a $45,000 mortgage on the property, imported “not merely that the legal mortgage title was in the bank, but also that the bank held that title as an original mortgagee to secure a loan that it had made on the faith of its appraisement of the value of the property as a safe investment for savings bank funds.” Greene v. Adomaitis, 259 Mass. 605, 607. Such representation was nonactionable as to value, but was an actionable representation as to a specific fact — the price third persons were willing to pay for the property. Belcher v. Costello, 122 Mass. 189, 190.
It cannot be said as matter of law that the representations were not material; but whether they were or were not material was at least a question of fact for the jury. Fottler v. Moseley, 179 Mass. 295, 298. It is obvious the representations could have been found by the jury to have been understood by the plaintiff in the sense that the bank had itself loaned $45,000 upon an original mortgage taken by it directly from the owner of the property, and that the loan did not exceed sixty per cent of the value of the estate mortgaged. It is plain that if the'natural tendency of the representation is such as to induce reliance, and the testimony of the representee is that he did so rely, the jury may be allowed to find such reliance. Nash v. Minnesota Title Ins. & Trust Co. 159 Mass. 437, 443. Mignault v. Goldman, 234 Mass. 205, 208. Duncan v. Doyle, 243 Mass. 177, 180. In the case at bar both of these propositions are applicable. The plaintiff did not as matter of law rely on the representations because he was experienced in real estate dealings, and because he formed an opinion of the value of the property based upon his own investigation. In this connection it is to be noted that a misrepresentation to be actionable does not have to be the sole or predominating inducement to the transaction. Matthews v. Bliss, 22 Pick. 48, 53. Safford v. Grout, 120 Mass. 20, 25. Duncan v. Doyle, 243 Mass. 177, 180. The fact that the plaintiff may have had some experience in real estate dealings is only one element to be considered by the jury in determining whether he did in fact rely on the representations. Rollins v. Quimby, 206 Mass. 391, 394. Anastas v. Koliopoulos, 222 Mass. 267, 269. Picard v. Allan, 285 Mass. 15, 18.
The question whether the plaintiff exercised reasonable care in relying upon the representations is ordinarily one of fact. Commonly it has been held that the plaintiff is not barred from recovery in deceit, as matter of law, by his failure to examine records which may have revealed the
The rule of damages applicable in actions for deceit is that recovery will be allowed of the difference between the money value of the property as represented and its actual value. Thomson v. Pentecost, 206 Mass. 505, 512. Vouros v. Pierce, 226 Mass. 175, 178. Leader v. Kolligan, 262 Mass. 63, 65. The value of property as represented and its actual value are questions of fact and a proper matter for expert opinion. Thomson v. Pentecost, 206 Mass. 505, 510. The testimony of the experts above referred to warranted a finding that the plaintiff paid a sum of money in excess of the fair value of the property, induced to do so by the intentional misrepresentations of the defendant to that end.
Concededly the jury were properly instructed upon every issue, one of which was the question of damage. It is manifest, as the plaintiff contends, “that there was sufficient evidence to warrant the jury in finding every essential element of an actionable misrepresentation, one materially inducing the purchase, one rightly relied on, and one occasioning actual, legally recognizable damage.” The case was submitted rightly to the jury, the plaintiff’s exceptions are sustained and judgment is to be entered on the verdict for the plaintiff.
So ordered.