Anastas v. Koliopoulos

• Decision Date: 26 November 1915
• Parties: ANASTAS et al. v. KOLIOPOULOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 267

110 N.E. 292

ANASTAS et al.

v.KOLIOPOULOS.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 26, 1915.

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Action by Louis Anastas and others against George Koliopoulos. Verdict for plaintiffs, and defendant excepts. Exceptions overruled.

The ninth request was as follows:

‘The fact that the plaintiffs did not do as much business in the store as the defendant claimed to have done is not evidence of fraud on the part of the defendant.’

John P. Driscoll, of South Framingham, for plaintiffs.

Jas. W. Milne, of Boston, for defendant.

CARROLL, J.

This is an action of tort for deceit in the sale of the defendant's business. The defendant represented to the plaintiffs that he was doing a business of $150 a week and was the owner of a soda fountain on the premises. The jury found, in answer to questions submitted to them: First, that the defendant falsely represented to the plaintiffs, as an inducement to them to purchase the store and business, that he was doing a business of $150 a week at the store; second, that the defendant falsely represented to the plaintiffs, as an inducement to purchase from the defendant the store and business, that he was the owner of and had good right to sell the soda fountain.

The plaintiffs testified that shortly after they took possession the defendant informed them that there was a balance of $300 due on the soda fountain and they would have to pay that amount before the fountain would belong to them. When they discovered that the store was not doing a business of $150 a week, they reported the fact to the defendant and were asked by him to stay for two weeks longer. so that he could induce some one to purchase the store and then he would return their money. The time was extended on two or more occasions, until May 25, 1913, when they turned over the premises to the defendant, telling him that they repudiated the contract on account of his false representations.

The plaintiffs took possession of the store April 1, 1913. At this time a written memorandum of the sale was signed by the plaintiffs Louis Anastas and Philip Theodosis, and both testified they were informed by the defendant and believed it was a memorandum of their oral agreement with him (see Peaslee v. Peaslee, 147 Mass. 171, 17 N. E. 506); that they could not read the agreement, which was in English, and it was not interpreted to them. This agreement stated there was an unpaid balance on the soda fountain; that $500 was paid on the contract and $445 was to be paid on or before April 7, 1913; the balance, $900, was to be secured by mortgage. The two plain tiffs then stated to the defendant that it would be impossible for them to pay $445 on April 7, 1913, and the defendant advised them ‘to go and get some one else to go into partnership with them and in that way raise the money.’ Thereupon they entered into partnership with the plaintiff Nicholas, and on April 3, 1913, the bill of sale was delivered to the plaintiffs and a mortgage was given to the defendant. There was a verdict for the plaintiffs.

The third ruling asked for by the defendant could not have been given. It was a question of fact, and not of law, whether the plaintiffs relied on their own investigation of the business or upon the...