Burns v. Dockray
| Decision Date | 29 March 1892 |
| Citation | 156 Mass. 135,30 N.E. 551 |
| Parties | BURNS v. DOCKRAY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Morse & Lane, J.B. Goodrich, and C.R. Darling, for plaintiff.
C.G Keyes, for defendants.
This was an action for fraud in the sale of real estate to the plaintiff. The fraud relied on consisted of alleged misrepresentations and concealments on the part of the defendants as to the title. The premises were conveyed by one Lang on November 13, 1884, to Perrin, one of the defendants, who conveyed them to the plaintiff, March 19, 1885. The defendant Dockray was interested in the sale to plaintiff, as he had assisted Perrin with funds in the purchase from Lang, and was to have one-half of the profits that might be made by a sale of the property. The transaction was conducted on behalf of the plaintiff by her husband, who acted as her agent. The husband testified that the negotiations were between him and the defendants,--principally with Dockray; that Dockray told him of a mortgage on the place, and that Mrs. Lang had a right of dower, and he understood he was to take the property subject to the mortgage and the dower. He also testified that Dockray told him and that Perrin "always said it [the title] was good; always said they would give me a good title." The husband further testified that he believed Dockray's statement and took his word for it, and trusted him, though he was a little nervous about it, and employed Mr. Henry Naphen, a lawyer, to look the title up. It appeared that Lang was adjudged insane March 30, 1885, and his wife was appointed guardian, and by proceedings subsequently instituted recovered the premises from the plaintiff on the ground that Lang was insane at the time when he made the deed to Perrin. There was testimony tending to show that Lang was in fact insane at that time, and that then, or soon after, the defendants were informed by Mrs. Lang, and by an attorney whom she sent to them for that purpose, and in other ways that it was claimed that Lang was insane, and incompetent to make a deed. The defendants said nothing to the plaintiff or her husband as to Lang's insanity, and neither the plaintiff nor her husband knew anything about it till the bringing of the suit by Mrs. Lang as guardian. The plaintiff did not claim that any representations were made to her or her husband as to Lang's sanity by the defendants or either of them. It is often difficult to tell whether things that are said at the time of or preliminary to a sale are to be regarded as seller's talk of which the buyer must beware at his peril, or as expressions of opinion or judgment on the part of the seller, or as representations of something as true which the seller knows is false, or as representations of something susceptible of knowledge, concerning whose truth or falsity the seller is ignorant or mistaken, but which he states as true. It is only where what is said amounts to one or both of the last two descriptions that it comes within the catalogue of fraudulent misrepresentations. Pike v. Fay, 101 Mass. 134; Milliken v. Thorndike, 103 Mass. 382; Furnace Co. v. Moffatt, 147 Mass. 413, 18 N.E. 168, and cases cited. In the present case there was the positive statement that the title was good, of parties who apparently were in a position to know the truth or falsity of what they said. The statement was not made as a matter of judgment or opinion, and cannot be regarded as seller's talk. The statement was made absolutely, as of a fact. Coupled with it was the failure to refer in any way to the alleged insanity of Lang, which, if it existed, seriously clouded the title, making the sale to Perrin voidable at the election of Lang or his guardian. This failure may have been due, as the defendants claimed, to the fact that they did not think of it, or that they did not believe him insane, and so attached no importance to the allegation,--though either would have been a valid excuse if the information was material. (Furnace Co. v. Moffat, 147 Mass. 413, 18 N.E. 168;) or to the fact that the chance of making a profitable sale led them to keep still about it, in which case their statement that the title was good was clearly fraudulent, (Atwood v. Chapman, 68 Me. 38.) They were not required to decide whether Lang was actually insane, but to communicate the information which there was evidence they had received. No doubt even a positive statement that a title is good may involve somewhat matter of opinion; but it also imports that there are no facts that affect its validity, just as a statement that goods are attached, or one that stock is non-assessable, are representations that facts exist which justify the statement. Burns v. Lane, 138 Mass. 350; Windram v. French, 151 Mass. 547, 24 N.E. 914. Perhaps there may be cases where a statement, though made positively and distinctly, must be taken as the expression of an opinion, (Deming v. Darling, 148 Mass. 504, 20 N.E. 107; Eaglesfield v. Marquis of Londonderry, 4 Ch.Div. 709;) but the statement in this case that the title was good, in view of the circumstances under which it was competent for the jury to find that it was made, cannot be so regarded. In Bank v. Kitson, 13 Q.B.Div. 360, it was held that an acceptance by directors was a representation that the company had power under private acts of parliament to accept a bill, and was a representation of fact, and not of law. It is not necessary to consider in this case whether an action for a false representation of law will lie. That is still an open question here. Deming v. Darling, supra. The plaintiff can recover only in case she relied in making the purchase upon the representations of the defendants that the title was good. The husband testified that he believed...
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