Brady v. Finn
| Decision Date | 19 October 1894 |
| Parties | BRADY v. FINN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.O. Dwight, for plaintiff.
A.L Green, for defendant.
The amended declaration in this case is inartificially drawn, but it was not demurred to, and we are of opinion that it sets forth a cause of action with sufficient precision to support a verdict. Fraud is undoubtedly the gist of the action, and in some form must be alleged and proved. The declaration sets forth certain facts to have been stated by the defendant, and their falsity, and also alleges the defendant's knowledge of their falsity. See Litchfield v. Hutchinson, 117 Mass. 195; Holst v. Stewart, 154 Mass. 445, 28 N.E 574. The representations made were of material facts, which were susceptible of knowledge; and the fraudulent intent of the defendant was an inference which the jury was entitled to draw. Collins v. Denison, 12 Metc. (Mass.) 549.
The question of most difficulty in the case arises from the fact that the misrepresentations were concerning facts, the truth or falsity of which could have been ascertained by the plaintiff had she gone to the farm before taking a deed thereof. The general rule undoubtedly is "that one bargaining with another must use reasonable diligence to discover for himself facts obvious to an ordinary observer of which the means of knowledge are equally available to both parties;" and that, if he fails to do this, he cannot maintain an action of deceit for the misrepresentation of them. Holst v. Stewart (Mass.) 37 N.E. 755, per Knowlton, J. In the same case, however, it was said "But, in the application of this rule, the circumstances of each case should be considered to determine whether the plaintiff has been guilty of such inexcusable negligence as should preclude him, under a general rule of public policy, from having a remedy against one who has fraudulently abused his confidence." And, in that case it was held, on the circumstances, that the court could not say, as matter of law, that the plaintiff was so careless in trusting the person making the representation that he should be precluded from recovering. In the case at bar the jury would have been warranted in finding that the farm which the plaintiff was induced to buy, though in the same town where she and the defendant lived, was in a remote part thereof, with which she was unacquainted; that she proposed on two occasions to the plaintiff to take her there, and he promised to take her on some...
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