Kilroy v. Barron

• Decision Date: 14 November 1950
• Parties: KILROY v. BARRON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 464

95 N.E.2d 190

KILROY v. BARRON.

Supreme Judicial Court of Massachusetts, Suffolk.

November 14, 1950

Argued Oct. 5 1950.

F W. Ziniti, Boston, for plaintiff.

C. W. O'Brien Boston, for defendant.

Before QUA, C. J and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is an action for deceit brought by a former tenant of the defendant to recover damages because of alleged fraud of the defendant which resulted in the plaintiff's vacating his tenement. A demurrer, based upon the ground that the matters alleged in the plaintiff's declaration were insufficient in law to enable the plaintiff to maintain the action, was sustained and the plaintiff appealed.

The declaration alleged that the plaintiff was a tenant of the defendant on January 30, 1948, when a written notice to quit was served upon him which stated that the defendant desired to have the tenement 'for family occupancy,' which under the Housing and Rent Act of 1947, U.S.C. (1946 ed.) Sup. I, Title 50, Appendix, § 1899(a), 50 U.S.C.A.Appendix § 1899, was adequate cause for the defendant seeking to secure possession of the premises; that the defendant knew that this statement that he desired the premises for this purpose was false and was made with intent that the plaintiff would act upon it; that the plaintiff believed this statement to be true and relied upon it; that he did not ascertain its falsity until after he vacated the premises; that the defendant commenced an action of summary process in a District Court on March 2, 1948; that he continued to represent that he desired the premises for the aforesaid purpose; that as a result of said continuing representation the plaintiff was induced to enter into an agreement for judgment; that the defendant did not file the agreement for judgment; that the plaintiff vacated the tenement on December 1, 1948, because he believed the continuing representation of the defendant that he desired the possession of the tenement for his own use and was in fear of being forcibly evicted therefrom; that the defendant never intended to occupy the said tenement but in fact intended to sell the property and to use the vacated tenement as a means of facilitating the sale of the property; and that because of the defendant's fraud the plaintiff was caused considerable expense and great damage, as alleged in his writ.

To recover for that intentional fraudulent conduct of which the plaintiff complains, he must allege and prove that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage. Alpine v. Friend Bros., Inc., 244 Mass. 164, 138 N.E. 553. Robichaud v. Owens-Illinois Glass Co., 313 Mass. 583, 585, 48 N.E.2d 672. McCarthy v. Brockton National Bank, 314 Mass. 318, 326, 50 N.E.2d 196.

The misrepresentation of the defendant's proposed use of the plaintiff's tenement was a misrepresentation of a material fact, Commonwealth v. Althause, 207 Mass. 32, 47-48, 93 N.E. 202; DuBois v. Atlantic Corp., 322 Mass. 512, 520, 78 N.E.2d 185, which, it is alleged, was made with the intent that the plaintiff should rely upon it, and upon which the plaintiff did rely. Matthews v. Bliss, 22 Pick. 48, 53. Butler v. Martin, 247 Mass. 169, 173, 142 N.E. 42.

A plaintiff in an action for deceit is not entitled to nominal damages merely by proving that the defendant perpetrated a fraud upon him, but in order to prevail he must allege and prove the nature and extent of damage which he contends resulted from the fraud. Connelly v. Bartlett, 286 Mass. 311, 190 N.E. 799. Pearl v. William Filene's Sons Co., 317 Mass. 529, 532, 58 N.E.2d 825. We think that, as against a demurrer not...