127 Mass. 219 | Mass. | 1879
This is an action of tort. The plaintiff in his declaration charges the defendant with several false and fraudulent representations, by means of which he alleges that he was induced to part with his property in exchange for a note against another person, secured by mortgage on real estate, and then owned and held by the defendant.
At the trial, only two of these representations were treated by the court as material or actionable; one was the statement that $400 had been paid on the note to the defendant; and the other, the statement that the note was as good as gold, and would be paid at maturity. As to the first of these, the jury were told that the statement was an averment of an existing fact in reference to the note, within the knowledge of the defendant, and was therefore a material and actionable represen
But the test thus stated by the learned judge we think had a tendency to mislead the jury upon the question before them, because a representation as to a man’s financial ability to pay a debt may be made either as a matter of opinion, or as a matter of fact; the subject of the statement does not necessarily determine which it is.
It is often impossible to determine, as matter of law, whether a statement is a representation of a fact, which the defendant intended should be understood as true of his own knowledge, or an expression of opinion. That will depend upon the nature of the representation, the meaning of the language used, as applied to the subject-matter, and as interpreted by the surrounding circumstances, in each case. The question is generally to be submitted to the jury. Thus in Belcher v. Costello, 122 Mass. 189, where similar representations were made, it was held erroneous to instruct the jury that, if the defendant intended to represent, and give the plaintiff to understand, that the makers of the note were in good pecuniary circumstances and able to pay, such a representation would be of a fact, and, if false and fraudulent, would be actionable. See also Teague v. Irwin, ante, 217, and cases there cited.
The defendant, upon all the evidence, asked the judge to rule that the plaintiff was not entitled to recover in this action, and