Thomson v. Pentecost

206 Mass. 505 | Mass. | 1910

Sheldon, J.

At the trial of this case the defendant took many exceptions. We have considered only those which have been argued in his behalf, treating the others as waived.

We find no error in the admission of the testimony of Beers and Cushman as to the value of the defendant’s dairy. They were practical farmers, and could be found to have sufficient knowledge and experience to give their opinions upon this question." Gossler v. Eagle Sugar Refinery, 103 Mass. 331. Hawks v. Charlemont, 110 Mass. 110. It could not be presumed that the jury were familiar with the value of dairies, and the opinions of qualified witnesses were competent. Miller v. Smith, 112 Mass. 470, 476. Ross v. Schrieves, 199 Mass. 401, 402. The testimony of Beers that no money could be made by running it as a dairy was competent for the same reasons, and was material because it tended to show the falsity of one of the defendant’s representations. The further testimony of Beers that the money paid him by the defendant when he ceased to run the farm was not profits, but represented the increased amount and value of the stock, was not testimony to the contents of the books kept by the witness, and could not have been excluded upon that ground.

It could not have been ruled that the plaintiffs’ failure to investigate the truth of the defendant’s statements, by questioning Beers and examining the books kept by him, was necessarily fatal to their recovery; and the defendant’s fifth request was rightly refused. It would have excluded from the consideration of the jury the testimony that the defendant requested the plaintiffs not to let Beers know of their intended purchase and that he suggested to Beers not to tell them what he knew about the dairy. Even apart from this consideration, the fifth request ought not to have been given without qualification. This was decided in Whiting v. Price, 172 Mass. 240, in which it was held that whether a purchaser is justified in relying upon representations made to him by a seller may be a question for the jury, although the seller referred to the sources of his information and even advised the purchaser to consult these. The rule was stated to substantially the same effect by the present Chief Justice in Holst v. Stewart, 161 Mass. 516, 522, quoted and followed in Brady v. Finn, 162 Mass. 260, 266. And see to the same effect Nowlan v. Cain, 3 Allen, 261; Savage v. Stevens, 126 Mass. 207; Lee v. Tarplin, 183 Mass. 52, 57; Adams v. Collins, 196 Mass. 422, 428; Long v. Athol, 196 Mass. 497, 504, 505; Rollins v. Quimby, 200 Mass. 162, 163; Smith v. Werkheiser, 152 Mich. 177; Linington v. Strong, 107 Ill. 295, 302; Handy v. Waldron, 19 R. I. 618.

We find nothing in the decision or in the reasoning of the court in Mabardy v. McHugh, 202 Mass. 148, to sustain the defendant’s contention. The judge fairly submitted this issue to the jury, telling them that the plaintiffs were bound to be reasonably diligent in looking out for themselves and could not recover if they had failed of this duty. The instructions were correct and sufficiently full.

The defendant has argued that the instructions given to the jury as to the defendant’s liability were misleading. We do not so consider. The fact that in the written paper which he gave to the plaintiffs he called what he said an “ estimate ” and used the words “ I think,” could not avail him, if the jury found, as upon the rulings made their verdict shows that they did find, that he intended the plaintiffs to understand and orally represented to them that these were statements of actual facts taken from his books. Way v. Ryther, 165 Mass. 226. The attention of the jury was carefully and particularly called to this question, and it now must be regarded as settled by their verdict..

The damages to which the plaintiffs were severally entitled were to be measured by the difference between the actual value of what they severally received and what that value would have been if the defendant’s representations had been true. Whiting v. Price, 172 Mass. 240. Under the written executory agreement between the parties, the plaintiffs together were to have taken a lease of the defendant’s dairy farm and to have purchased his milk route and live stock and other personal property. But finally the plaintiff Thomson took and paid for the lease and the property bargained for, and Stone left his former employment and undertook to run the farm and the business thereof for the other plaintiff, each acting upon and being induced by the defendant’s false representations. It follows that the damages to be recovered by Stone were the difference between the actual value of this new employment which he undertook and what that value would have been if the defendant’s representations had been true. But the judge left it open to the jury to give to the plaintiff Thomson a further sum for her losses in carrying on the business which she had bought of the defendant, and to the plaintiff Stone a further sum for the time which he lost by leaving his former employment and undertaking to run the dairy. This was giving to them more damages than upon their declarations they were entitled to receive. They were content, if the defendant’s representations were true, to run the risk of undertaking this business and abandoning their former occupations and employments. They are indemnified if these representations .are made good. Globe Refining Co. v. Landa Cotton Oil Co. 190 U. S. 540, 546.

Nor was this error corrected by what the judge, after recalling the jury, said to them “ substantially in the place ” of what he had said before on the subject of damages. It was still left open for the jury to give to each plaintiff a larger amount of damages than ought to have been charged against the defendant. Whether this actually was done we have of course no means of knowing. But it should be added that as the judge told the jury that the plaintiff Stone had bought nothing from the defendant and was not to be given anything for the difference in the value of the property which was the measure of Mrs. Thomson’s damages, it cannot be said that each plaintiff separately was allowed to recover the whole amount of the defendant’s liability, and the defendant’s complaint as to this point is without foundation.

The right of each plaintiff to a verdict is settled, and ought not to be reopened. But as to the amount of damages in each case, the defendant’s exceptions must be sustained and a new trial must be had upon that question only. Stynes v. Boston Elevated Railroad, 206 Mass. 75, 78. Montgomery Door & Sash Co. v. Atlantic Lumber Co. 206 Mass. 144,147.

So ordered.