Brackett v. Perry

• Decision Date: 29 March 1909
• Citation: 201 Mass. 502,87 N.E. 903
• Parties: BRACKETT et al. v. PERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 502

87 N.E. 903

BRACKETT et al. v. PERRY.

Supreme Judicial Court of Massachusetts, Norfolk.

March 29, 1909

COUNSEL

Natt T. Abbott, Jas. L. Edwards, and Henry Edwards, for plaitniffs.

John E Hannigan and Isidor Fox, for defendant.

OPINION

SHELDON J.

The plaintiffs contend that their cause of action did not accrue and the statute of limitations did not begin to run until October, 1902, when Jenks recovered judgment against them. They rest this contention on the well-recognized doctrine that in an action to recover damages for deceit the plaintiff must show not only that deception was practiced upon him, but that it was practiced to his loss; that this was not an absolute wrong, for which the injured person may recover at least nominal damages, like one who sues for a breach of contract or the invasion of an absolute right, but that it was merely ground for an action on the case, ex delicto, in which recovery can be had only upon proof of both injury and damage. Wellington v. Small, 3 Cush. 145, 149, 50 Am. Dec. 719; Hayward v. Draper, 3 Allen, 551, 552. The gist of the action is the damage which has been wrongfully done to the plaintiff. Boston v. Simmons, 150 Mass. 461, 463, 23 N.E. 210, 6 L. R. A. 629, 15 Am. St Rep. 230; Fottler v. Moseley, 179 Mass. 295, 298, 60 N.E. 788; Lewis v. Corbin, 195 Mass. 520, 524, 81 N.E. 248, 122 Am. St. Rep. 261. The same rule is applicable to an action to recover for personal injuries caused by the negligence of another. Sullivan v. Old Colony St Ry., 200 Mass. 303, 86 N.E. 511.

But in this case the damage done to the plaintiff was not that he was made liable to Jenks for a commission. That liability would have existed if the defendant in this action had not been guilty of any fraud. The damage which the defendant intended to do and actually did to the plaintiffs was to persuade the latter, by reason of the false representations made by him, to sell their property to the defendant for $2,000 less than the price which they otherwise would have demanded; and that damage was suffered, and the plaintiffs' cause of action against the defendant became complete, as soon as the plaintiffs bound themselves to convey the land to the defendant for the inadequate price, and carried out that agreement. That is the principle of Kilgore v. Bruce, 166 Mass. 136, 44 N.E. 108, in which the fraud was practiced upon the buyer instead of the seller.

But if the plaintiffs' cause of action was fraudulently concealed from them by the defendant, then the statute of limitations would begin to run against the plaintiffs only when they had discovered the cause of action. Rev. Laws 1902, c. 202, § 11. The plaintiffs contend that it might have been found here that the defendant's persistence in his false statements that no broker had brought this matter to his attention, even after Jenks and Wood had informed the plaintiffs that the contrary was the fact, was a fraudulent concealment of the cause of action within the meaning of this statute, and that the plaintiffs did not discover the cause of action until Jenks recovered judgment against them in October, 1902.

But the defect in this...