Golding v. 108 Longwood Ave.

• Decision Date: 08 March 1950
• Parties: GOLDING v. 108 LONGWOOD AVENUE, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 465

91 N.E.2d 342

GOLDING v. 108 LONGWOOD AVENUE, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

March 8, 1950

Argued Jan. 6 1950.

A W. Parker, Somerville (S. H. Rudman, Boston, with him), for plaintiff.

Simon B. Stein Boston (C. Evans, Boston, with him), for defendant.

Before QUA, C. J and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

WILKINS, Justice.

This is a bill in equity to rescind a lease of an apartment in a building in the course of construction, because the rooms were smaller than represented, and to recover an advance payment of rent. The bill, as amended, is based upon fraud and, in the alternative, upon mutual mistake of fact. The defendant appealed from a final decree in favor of the plaintiff. The evidence is not reported.

The judge made voluntary findings of material facts, which, as the result will not be affected, we assume was intended to include all facts necessary for the determination of the issues, and treat as the equivalent of a report under G.L. (Ter.Ed.) c 214, § 23, as amended. The defendant's treasurer told the plaintiff that the rooms were to be of certain specific measurements. The dimensions given to the plaintiff were in fact distances shown on a blue print plan as running from the exterior walls to the center of partitions, but the plaintiff, who was given no copy of the plan, believed them to be inside measurements, and in that belief entered into the lease. The sizes of the rooms were one of the factors which induced him to sign. After the plaintiff learned that the rooms were to be smaller than he had been told, and before the apartment was completed and made ready for occupancy, he notified the defendant that he repudiated the lease because of the discrepancy in the sizes of the rooms. The judge also stated, 'But I am unconvinced that this was the real reason for the repudiation,' and 'I do not find that the defendant misstated the sizes of the rooms with the intention to deceive the plaintiff.'

The defendant rightly makes no contention that it was not bound by the statements of its treasurer. McCarthy v. Brockton National Bank, 314 Mass. 318, 325, 50 N.E.2d 196.

It is first necessary to analyze the findings. It is not expressly said that the defendant gave the plaintiff the outside measurements as inside measurements. But that is implied in the finding that the plaintiff learned that the rooms were to be smaller than he had been told. There was, accordingly, a misstatement of fact as to area, which could be the basis of an action for deceit, should the other elements of such an action be present. Powers v. Rittenberg, 270 Mass. 221, 223-224, 169 N.E. 913; Forman v. Hamilburg, 300 Mass. 138, 139-140, 14 N.E.2d 137. The test to determine whether the plaintiff is to be relieved of his contract by reason of any fraudulent misrepresentation is the same as that applied in actions of tort for deceit. Plumer v. Luce, 310 Mass. 789, 801-802, 39 N.E.2d 961. The statement by the judge, 'I do not find that the defendant misstated the sizes of the rooms with the intention to deceive the plaintiff,' is a finding that the burden of proof in this respect had not been sustained. Uccello v. Gold'n Foods, Inc., 325 Mass. 319, 90 N.E.2d 530. National Shawmut Bank v. Cumming, 325 Mass. 457, 91 N.E.2d 337. The burden of proving intent to deceive was on the plaintiff. Kerrigan v. Fortunato, 304 Mass. 617, 620, 24 N.E.2d 655; Gedart v. Ejdrygiewicz, 305 Mass. 224, 228, 25 N.E.2d 371. Hence, there was no fraud in fact.

We must proceed in the absence of any finding as to the defendant's knowledge of the misrepresentation. The defendant either did or did not, know whether the outside measurements which it gave as inside measurements in the building, of which it was making a lease as landlord, were in fact outside measurements. If it did know, there was fraud in law, even without intent to deceive. Flynn v. Colbert, 251 Mass. 489, 493, 146 N.E. 784. If it did not know, there still could be fraud in law, because the dimensions were facts susceptible of knowledge, and the treasurer's statements could have been found to be a representation that he had knowledge of their truth. Harwood v. Security Mutual Life Ins. Co., 263 Mass. 341, 347, 161 N.E. 589; Howard v. Barnstable County National Bank, 291 Mass. 131, 136, 197 N.E. 40; Palmer v. Motley, 323 Mass. 129, 136, 80 N.E.2d 460. The representations, contrary to the defendant's contentions, were material. See Rudnick v. Rudnick, 281 Mass. 205, 207, 183 N.E. 348. It could have been inferred that the statements were made with intent that the plaintiff rely...