Haskell v. Starbird

• Decision Date: 30 June 1890
• Citation: 152 Mass. 117,142 N.E. 695
• Parties: HASKELL v. STARBIRD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 117

142 N.E. 695

HASKELL

v.STARBIRD.^*

Supreme Judicial Court of Massachusetts, Middlesex.

June 30, 1890.

Exceptions from Superior Court, Middlesex County; Lincoln F. Brigham, Judge.

Action by John Haskell against Charles D. Starbird, for deceit in the sale of land. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

C. Cowley, for plaintiff.

J. N. Marshall, M. L. Homblet, and J. C. Burke, for defendant.

DEVENS, J.

There was evidence that the purchase of a certain tract of land in Canada, in which purchase the plaintiff alleged himself to have been deceived, was made through one Rockwell, who acted as the agent for the defendant, and that the plaintiff was deceived by the representations made by Rockwell that the land was of the value of $1,200, contained a large amount of timber, and was adjacent to a flourishing village, which representations were false. There was also evidence that Rockwell made these representations as the agent of the defendant. Rockwell also testified that the defendant made these representations to him; that he therefore made them to the plaintiff; and that, before the conveyance was made, he informed the defendant that he had so made them. While the statement as to the value of the land might be treated as an expression of opinion, only, those in reference to the locality of the land, and the amount of timber on it, were statements of fact, of importance to any one proposing to purchase it; nor does the land appear to have been readily accessible, so that their accuracy could have been tested by the plaintiff. The defendant denied that he ever made any representations concerning the condition or location of the land, and offered evidence that, at the time the conveyance was made by him, he informed the plaintiff that he had never seen the land and knew nothing about it except what he had been informed, etc. The defendant requested the court to instruct the jury as follows:

‘(1) If the jury shall find that Rockwell was the agent of the defendant in selling the land in question, and that, as such agent, he made the misrepresentations relied on, and that after the same were made, and at the time, but before the deed of this land was delivered, the defendant, in answer to inquiry made of him by the plaintiff, replied that he had never seen the land, and knew nothing about it except what had been told him, and the plaintiff, without further inquiry, accepted the deed, and paid the consideration agreed on, he cannot recover.

‘(2) If the jury shall find that Rockwell was the agent of the agent of the defendant in selling the land in question, the plaintiff, cannot recover, unless it is proved that the defendlant was privy to or adopted the misrepresentations relied on.’

The court declined to give these instructions, and instructed the jury:

‘If the defendant employed and authorized Rockwell to sell the land, and in pursuance of that authority Rockwell sold the land and did induce the plaintiff to buy, and made false and fraudulent representations about the land, upon which the plaintiff relied and which induced him to purchase, I shall instruct you that the defendant would be responsible for that fraud, notwithstanding there were no instructions given to Rockwell by the defendant which authorized him to make fraudulent representations, and notwithstanding the defendant did not know that he practiced those fraudulent representations. Employing him as agent, or as his agent to do that thing, he became responsible for the methods which his agent adopted in doing that thing. * * * If the representations were false in fact, and Rockwell had no knowledge personally of the truth of these representations, but derived his information from others upon those facts, he, or the person for whom he was acting as the agent in the same, would be liable to an action for deceit.’

The first instruction requested and refused should not have been given. It was an instruction on only a part of the evidence, and omitted entirely any consideration of the important testimony of Rockwell that he made the false representations acting as the defendant's agent and upon his express authority, and also that the fact that they had been made was communicated to the defendant before the transaction was closed by the payment of the purchase money, and the making of the conveyance. Even if the testimony of Rockwell was denied by the defendant, and controverted by other evidence, the instruction asked, if given, would have led the jury to infer that it was unimportant for them to consider this evidence, and that the mere fact that the defendant made the remarks testified to by him at the time of passing the deed would prevent the plaintiff from recovering, while it might be, also, that the plaintiff, in completing the transaction, depended upon the false and fraudulent representations of the defendant's agent, made at the defendant's own instance. The contention of the defendant is that, the plaintiff having been put upon his guard by this conversation, he was affected by all the knowledge which he might have obtained if he had inquired further, and elsewhere. But the defendant did not in the conversation, in any way, repudiate the representations of Rockwell, assuming them to have been made, or put the plaintiff on inquiry as to the correctness of them. On the contrary, the natural inference...