85 Mass. 380 | Mass. | 1862
This is an action of tort for deceit in the sale to the plaintiff, by the defendant, of a promissory note, and the transfer of an interest in a mortgage given as security for the payment of the note. The declaration alleges that the defendant falsely and fraudulently represented to the plaintiff, 1st, that the maker of the note was perfectly responsible and able to meet his engagements, and 2d, that the security of the mortgage was undoubted, and that the property thereby conveyed was of great value over and above all incumbrances, and that said mortgage was amply worth the amount of the note and interest, and could be sold for its face at any time. At the trial, there was no evidence that the defendant made the first representation alleged, but there was evidence that he made the second, and that it was false. And, a verdict having been returned for the plaintiff, the main question in the case is, whether the following instructions to the jury were right, namely, that “ a mere expression of opinion was not enough, and the jury must be cautious on this point; that there must be a misrepresentation of some existing fact or state of things ; that if the jury believed that the representation of the value of the mortgaged premises was not an expression of opinion merely, but an affirmation of a fact, made to enhance the supposed value of the security sold, the defendant
The note was the principal thing which was the subject of sale, and the mortgage was a mere incident or adjunct. A false and fraudulent representation in regard to an incident or adjunct of a thing sold does not come within the rule that misrepresentations of the value of the thing
As these exceptions are sustained on the ground that the evidence of misrepresentation made by the defendant was not sufficient to maintain the action, the questions which were raised by the defendant, as to the admissibility of parts of that evidence, become immaterial. Exceptions sustained.