Coe v. Ware

Decision Date10 June 1930
Citation271 Mass. 570,171 N.E. 732
PartiesCOE v. WARE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Municipal Court of Boston, Appellate Division; Haskell, Special Judge.

Action by Charles F. Coe against Eliot B. Ware. The trial judge found for plaintiff, but the Appellate Division on report ordered judgment for defendant, and plaintiff appeals.

Order of Appellate Division affirmed.

W. H. Hitchcock, of Boston, for appellant.

W. F. Byrne and R. G. Wellings, both of Boston, for respondent.


The plaintiff sues for false representations alleged to have been made by the defendant, a sales agent of the Pierce Arrow Sales Corporation, in negotiations ending in his purchase of an automobile from the corporation. He testified that something was said about a merger of the Pierce Arrow Corporation with the Studebaker Company and he asked whether, if the merger took place, it would have any effect on price; that the defendant said it would not, a taking over by the Studebaker Company might affect the price of a larger model but ‘it will not change the price of this particular model,’ he was ‘safe as to both price and model, that the only change if any would be in the larger models.’ He testified, further, that he had, himself, been in the automobile business, and had known the defendant and had faith and confidence in him; that he relied upon these statements, bought the machine and paid the price named. The entire transaction was carried through on July 9, 1928. On July 13 the price of the model was reduced $600. The defendant testified that, after the contract with the company had been signed by the plaintiff but before the check given in payment had been signed by him, they discussed the proposed merger of the Pierce Arrow and Studebaker companies, and the plaintiff asked about a change in model; but denied that any mention of reduction in price was made. He testified that the first he knew of the reduction in price was on July 13, 1928. The sales manager of the Pierce Arrow Sales Corporation testified that he had been advised that the merger would not affect price; but, on July 13, for the first time, received notice of a reduction of $600 in the price of this model, and immediately notified the defendant.

The judge in the Municipal Court of Brookline refused to rule that the statements were of opinion and not actionable; that there was no evidence that, if the defendant made the statements, he then knew them to be false; that all statements were merged in the contract of purchase made with the Pierce Arrow Sales Corporation; that the misrepresentations, if any, were made by the corporation; that a misrepresentation by an agent ignorant of its falsity is not actionable against the agent but is alone the tort of the principal. He refused to rule that the defendant was entitled to the finding. On the contrary, he found that the defendant made the statements that the price would not be reduced, not as matter of opinion, but as of fact; that he could have ascertained their truth or falsity but did not; that the plaintiff relied upon them and was damaged; he ruled that possible liability of the principal was immaterial, that this agent had himself committed a tortious act in making false statements of fact the truth or falsity of which he could have ascertained but had failed to ascertain, and was responsible in this action. He found for the plaintiff in $600. The Appellate Division, on report, held that there was error in finding and ruling that the statements were actionable as representations of fact rather than of opinion. It ordered judgment for the defendant. The case is before us upon the plaintiff's appeal.

The defendant contends that he was acting, and was known to be acting, merely as an agent in making the sale, and, therefore, cannot be held personally liable for false statements even if actionable, that if there is any liability it is solely the liability of his principal. This contention is unsound. If an agent's conduct complained of involves only a duty arising from the contract between him and his principal and, therefore, due solely to the principal, then no liability on his part to third parties exists. French v. Fuller, 23 Pick. 108, 109; Levi L. Brown Paper Co. v. Dean, 123 Mass. 267;Tibbetts v. Wentworth, 248 Mass. 468, 472, 143 N. E. 349;Handy v. Miner, 258 Mass. 53, 62, 154 N. E. 557, but if that conduct also involves a duty to third persons-a duty imposed by law arising out of the circumstances-then such third person has a right of action against the agent, if he fails in performing this duty, and the contractual relation to the principal does not interpose a defence. Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741;Nowell v. Wright, 3 Allen, 166, 80 Am. Dec....

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26 cases
  • Janssen v. Carolina Lumber Co.
    • United States
    • West Virginia Supreme Court
    • November 18, 1952
    ...Ark. 511, 3 S.W.2d 337; Lowe v. Kohn, 128 Conn. 45, 20 A.2d 407; Dolle v. Melrose Properties, 252 Ky. 482, 67 S.W.2d 706; Coe v. Ware, 271 Mass. 570, 171 N.E. 732; Adams v. Gillig, 199 N.Y. 314, 92 N.E. 670, 32 L.R.A.,N.S., Applying the principle followed in the cases cited, we necessarily ......
  • Damon v. Sun Co., Inc.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 7, 1995 interpreted by the recipient to imply that the maker of the statement knows facts that justify the opinion"); Coe v. Ware, 271 Mass. 570, 171 N.E. 732, 734 (1930). The determination of whether a statement is of opinion or fact is a factual one, see id., and so we review only for clear Th......
  • Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., s. 84-1344
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 18, 1985
    ...was acting for the corporation. Refrigeration Discount Corp. v. Catino, 330 Mass. 230, 235, 112 N.E.2d 790 (1953); Coe v. Ware, 271 Mass. 570, 572-573, 170 N.E. 732 (1973); see 3A Fletcher, Cyclopedia of the Law of Private Corporations, Sec. 1143, at 228-230 (1975). Thus, whether or not Mar......
  • Refrigeration Discount Corp. v. Catino
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 27, 1953
    ...he owes such person. Lee v. Fisk, 222 Mass. 418, 422-423, 109 N.E. 833; Handy v. Miner, 258 Mass. 53, 62, 154 N.E. 557; Coe v. Ware, 271 Mass. 570, 573, 171 N.E. 732. The plaintiff, while disclaiming any liability upon the part of Chase for the conversion of the articles set forth in the de......
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