Isenbeck v. Burroughs

• Decision Date: 21 May 1914
• Citation: 105 N.E. 595,217 Mass. 537
• Parties: ISENBECK v. BURROUGHS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 537

105 N.E. 595

ISENBECK v. BURROUGHS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1914

COUNSEL

Robert W. Nason, Thos. W. Proctor, and Jos. E. Worcester, all of Boston, for plaintiff.

Wm. G Thompson and Richard W. Hale, both of Boston, for defendants.

OPINION

SHELDON J.

This bill exceptions is unnecessarily and unreasonably long. It is open to all the animadversions which were made in Cornell-Andrews Smelting Co. v. Boston & Providence R R. 215 Mass. 381, 387, 102 N.E. 625. The real questions raised at the argument are so covered up by a mass of irrelevant matter as to involve a serious danger that something material may be overlooked. Such a bill ought not to have been brought before the court. It may become a question, if this practice shall be persisted in and the objection shall be seasonably taken, whether such a bill ought not to be dismissed without argument. There is no justification for it in St. 1908, c. 177.

The plaintiff's complaint is that in his dealing with the defendants for the purchase of a certain estate in Boston they falsely represented to him that they were acting as agents for the owners; that the lowest price for which the owners would sell the estate, or rather the equity of redemption therein, was $35,000; that the plaintiff believed this, and in consequence thereof and reliance thereon bought the equity of redemption for that price, and paid $35,000 therefor; but that in fact the price fixed by the owners was only $25,000, and the owners received only that sum; that the defendants were not really acting as agents for the owners in their dealings with the plaintiff, but themselves bought from the owners for the smaller price which has been stated; and that the rest of what was paid by the plaintiff, to wit, the sum of $10,000, went into the pockets of the defendants. This was substantially set forth in the amended declaration. It was a good cause of action.

If these allegations were proved, there were false and fraudulent representations made by the defendants of matters peculiarly within their knowledge, which bore directly upon the amount of the price to be paid by the plaintiff and were precisely adapted to cause him a loss of $10,000. It comes within the rule of Kilgore v. Bruce, 166 Mass. 136, 44 N.E. 108. Except that here the fraud is alleged to have been practised by pretended agents for their own benefit, the case now presented is the same in principle as that put as an illustration by the court on page 139 of the opinion in Kilgore v. Bruce, ubi supra, and the case there cited.

There was evidence in support of the plaintiff's allegations. That the negotiations or some of them were carried on through Chaffee and Randall, either acting or purporting to act for the plaintiff and the defendants respectively, is not necessarily decisive of the issue. On the evidence, the questions of agency and authority, were for the jury. Indeed, if as could be found Randall was acting for the defendants in negotiating with the plaintiff, and if the defendants took the benefit of false and fraudulent representations made by Randall to the plaintiff to induce him to pay the higher price, it could be found that the defendants were responsible for these representations as if made by themselves. Jewett v. Carter, 132 Mass. 335; Haskell v. Starbird, 152 Mass. 117, 25 N.E. 14, 23 Am. St. Rep. 809; Thompson v. Barry, 184 Mass. 429, 433, 68 N.E. 674; Leslie v. Jaquith, 201 Mass. 242, 87 N.E. 480, 131 Am. St. Rep. 395. As it was said by this court in Lovett, Hart & Phipps Co. v. Sullivan, 189 Mass. 535, 536, 537, 75 N.E. 738:

'A person who has derived a benefit through the fraud of his agent cannot keep the fruits of the bargain, thus ratifying the fraud, without being liable in an action for deceit.'

We do not care to recapitulate the testimony. There was evidence, the weight of which it is not for us to pass upon tending to prove the material averments of the declaration. Doubtless there was much evidence to the contrary, and this has been made the most of in the argument of the defendants' counsel--to an extent indeed which lends some color to the assertion made by the plaintiff's counsel that the reprehensibly voluminous statements of the bill of exceptions are due mainly to the insistence of the defendants. But the considerations which have been urged for the defendants, though proper for the jury, cannot affect our decision. Neither the character of the plaintiff, nor the nature of his dealings with third persons about this property, nor the amount of the profit which he made out of these transactions, could as matter of law prevent his recovery. Whatever the facts might be as to these matters, it still would remain true, if he proved his allegations, that the fraud practised upon him by the defendants had caused him a largely pecuniary loss.

There is, however, one matter which calls for examination. After the payment of $1,000 made by the plaintiff through Chaffee to the defendants, apparently to bind the bargain, he took from the defendants a paper which read as follows:

'Received of William R. Chaffee one thousand dollars ($1,000.00) to be applied on purchase price of the estate 251 to 259 Atlantic avenue, Boston, the title to said estate being now in William F. Wharton et al., trustees, the purchase price to be $185,000.

'Insurance, taxes and rents to be adjusted as of date of transfer, and the property to be delivered free of all incumbrances.

'It is understood and agreed that Messrs. Burroughs and Deblois [the defendants] will use their best efforts

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