Clogston v. Martin

• Decision Date: 08 January 1903
• Citation: 182 Mass. 469,65 N.E. 839
• Parties: CLOGSTON v. MARTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 469

65 N.E. 839

CLOGSTON v. MARTIN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1903

COUNSEL

Chas W. Bartlett, E. R. Anderson, and F. C. Allen, for plaintiff.

Alfred Hemenway and Arthur E. Burr, for defendant.

OPINION

HAMMOND J.

The evidence tended to show that Smith, the duly authorized agent of the defendant, stated to the plaintiff that the plumbing and its connections with the sewer were all right; but it is strenuously contended by the defendant that, even if such statements were made, and were not true, there is nothing to show that Smith made them as of his own knowledge; or, to state the question with a little more precision, the defendant contends that, in view of the nature of the subject-matter of the statements alleged to have been made and the circumstances under which they were made, the evidence does not warrant a finding either that they were made by Smith as of his own knowledge, or that the plaintiff was justified in thinking that he was speaking of his own knowledge.

Only three persons were present at the time of the conversation in which it is contended by the plaintiff that the statements were made, namely, the plaintiff, Mrs. Graves, and Smith. As to the part of the conversation material to this inquiry, the plaintiff, in her direct examination, testified that she said to Smith: "I want you to tell me about the plumbing. I am very particular about that. I have been told to be very careful. I do not know anything about it myself, but I am very particular about moving myself and my aged mother into a house where it is not all right. Now, do you know it is all right?' He says, 'Yes, I do. I am sure it is all right in every way and the house is in good order." And again "Now,' I said, 'if you will guaranty me that the plumbing is right and the furnace is right, I will sign this lease.' He said, 'I know it is all right." And again: 'He told me that the sewerage was all right; he was sure of that.' On cross-examination she testified as follows: 'He * * * guarantied that it [the furnace] was all right. I said, 'If it is, all right; if it is not, I won't stay in the house; and if your plumbing is not all right, I wouldn't stay here fifteen minutes after I could get out. I wouldn't bring my mother, my family, here if I wasn't sure that the house was in good condition.”

Mrs Graves testified in chief as follows: 'She [plaintiff] said, 'I don't know how the plumbing is.' He says, 'I know it is all right, and you will find it so, Mrs. Clogston. You may depend on what I say. I know it is all right.” On cross-examination, she testified that at a former trial she had testified that the plaintiff asked Smith how he knew the premises were in good repair, and that he said to the plaintiff: "I know, and I can tell you how I know. This place was tested inside of a year ago.' That is what he said.' She further testified that at the former trial the plaintiff testified that she asked Smith why it was he knew, and that that was the answer he gave. Smith testified, in substance, that there was no such conversation, and that there was no mention of plumbing or drainage. The counsel for the defendant was allowed to...