Craig v. Everett M. Brooks Co.
| Decision Date | 03 January 1967 |
| Parties | Merwin H. CRAIG v. EVERETT M. BROOKS CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Harry J. Williams, Boston (Thomas A. Brett, Boston, with him), for plaintiff.
Robert W. Blakency, Boston, for defendant.
Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.
The plaintiff is a general contractor, and the defendant is engaged in the business of civil engineering and surveying. The plaintiff's exceptions are to the direction of verdicts for the defendant on two counts, both in tort. The trial judge directed the verdicts on the basis, which he stated, that 'there was no obligation on the part of Brooks, a civil engineer, to the contractor with whom he had no contract and no relationship.'
The first count, which sounds in deceit, alleges that the defendant in connection with work concerning a real estate development made material misrepresentations, which the defendant knew, or should have known, were false respecting the accuracy of measurements and specifications1 as to lines, grades, and other related matters; that the defendant knew and intended that the plaintiff 'should rely' on their accuracy; that the plaintiff did so rely and suffered damage.
The second count, which sounds in negligence, alleges that the defendant undertook to provide the plaintiff with measurements and specifications 1 concerning lines, grades, and other related matters in connection with the real estate development, well knowing that the plaintiff would expend sums for labor and materials in reliance upon their accuracy; that the defendant was negligent in providing improper and inaccurate measurements and specifications; and that in consequence the plaintiff suffered pecuniary loss.
The work related to a real estate development of Waymint Realty Trust (Waymint) on its land in Lexington. In the middle or latter part of 1959 the defendant entered into a contract with Waymint whereby the defendant supplied prints of plans for such development, and undertook to bring a field force to do the necessary staking of roads so that the contractor could build the roads, which would be in accordance with the grades and stakes the defendant would set out. The field force was three in number. When the stakes were placed the defendant knew that the plaintiff was the contractor. The defendant had drawn the plans in November, 1959, originally for another person, who was described in the testimony variously as a previous owner, or as one who had an option to buy. The plaintiff had no contract with the defendant, but entered into its contract with Waymint after seeing the plans.
Evidence of intentional or reckless misrepresentation is lacking, and a verdict was rightly directed for the defendant on count 1.
Although count 2 does not use the word 'misrepresentation,' the negligence alleged in making plans and in placing stakes, upon analysis, is for negligent and erroneous representations made in the plans and in the location of the stakes. Such acts are a form of representation. See Salzman v. Maldaver, 315 Mich. 403, 416--417, 24 N.W.2d 161, 168 A.L.R. 381 (); Jones v. West Side Buick Co., 231 Mo.App. 187, 194--195, 93 S.W.2d 1083 (); Prosser, Torts (3d ed.) § 101, p. 709. See also Commonwealth v. Warren, 6 Mass. 72.
Count 2 presents the question of liability arising in the course of the performance of a contractual duty, for pecuniary loss due to negligent misrepresentations made to one not in contractual privity with the defendant. This point was expressly left open in BLANK V. KAITZ, MASS., 216 N.E. 110,A where it was said that no Massachusetts case seems controlling.
The plaintiff contends that there were negligent misrepresentations (1) in the plans and (2) in the placing of stakes.
Erroneous representations in the plans are claimed in two respects. First, it is argued that an area of peat on Fessenden Road was not shown. Evidence, however, is lacking that the defendant had made any undertaking to provide information as to soil conditions. Next it is said that there was no disclosure of a 14 foot hill through which the plaintiff made a cut. But again it does not appear that the defendant had assumed a duty to show precise contours with sufficient accuracy for reliance by the plaintiff. The defendant's duty, if any, as to contours is obscure. There was inconclusive testimony by the plaintiff's foreman that the defendant's manager in charge of the operation said that the presence of the hill was not reflected in the plans, because 'we' did not have time to survey the area and so 'we' 'went from' a government topographical plan which did not show the hill.
The plaintiff, accordingly, has shown no ground of recovery for erroneous or negligent representation in the plans.
We now consider the issue of negligence in the placing of stakes. These were 'offset stakes,' which were to provide starting points for stakes to be set out by the contractor in connection with the prosecution of the work. The principal respects in which there was evidence tending to prove...
To continue reading
Request your trial
-
Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n
...causes of action for both fraudulent misrepresentation and negligent misrepresentation. See, e.g., Craig v. Everett M. Brooks Co., 351 Mass. 497, 222 N.E.2d 752, 753 (1967) (fraudulent misrepresentation); Nycal Corp. v. KPMG Peat Marwick, 426 Mass. 491, 688 N.E.2d 1368, 1371 (1998) (neglige......
-
Sebago, Inc. v. Beazer East, Inc.
...plans); Danca, 385 Mass. at 9-10, 429 N.E.2d 1129 (1982)(misrepresentations made in mortgage documents); Craig v. Everett M. Brooks Co., 351 Mass. 497, 501, 222 N.E.2d 752 (1967) (negligent "form of representation" involving engineer's placement of survey stakes); Frank Cooke, Inc. v. Hurwi......
-
Goldsmith v. Marsh USA, Inc. (In re Glasshouse Techs., Inc.)
...the economic loss rule has not been applied "to claims of negligence by a fiduciary, such as a lawyer"); Craig v. Everett M. Brooks Co. , 351 Mass. 497, 222 N.E.2d 752, 755 (1967) (in case involving a civil engineer, determining that economic losses can be recovered when connected to the ne......
-
Floor Craft Floor Covering, Inc. v. Parma Community General Hosp. Ass'n
...certiorari denied (La.1982), 410 So.2d 1130 (subcontractor may assert third-party claim against architect); Craig v. Everett M. Brooks Co. (1963), 351 Mass. 497, 222 N.E.2d 752 (contractor may recover against engineer); Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contr......
-
Massachusetts Appeals Court Decision Is Good News For Peer Review Consultants
...on Earth Tech, the Appeals Court distinguished Meridian from the Supreme Judicial Court's holding in Craig v. Everett M. Brooks Co., 351 Mass. 497 (1967). In Craig, the plaintiff relied on the services performed by an engineering firm on behalf of a third party. The SJC held that the plaint......
-
The Economic Loss Rule in Construction Law
...Conn. law) (“foreseeability is key to the determination of a cause of action in negligence”). 101. See Craig v. Everett M. Brooks Co., 222 N.E.2d 752, 755 (Mass. 1967) (engineer was not liable for mistakes in plans, but for professional negligence in improperly placing stakes needed to loca......
-
The Economic Loss Rule in Construction Law
...Conn. law) (“foreseeability is key to the determination of a cause of action in negligence”). 101. See Craig v. Everett M. Brooks Co., 222 N.E.2d 752, 755 (Mass. 1967) (engineer was not liable for mistakes in plans, but for professional negligence in improperly placing stakes needed to loca......