Limoli v. Accettullo
| Decision Date | 14 December 1970 |
| Citation | 265 N.E.2d 92,358 Mass. 381 |
| Parties | Joseph LIMOLI et al. v. Pasquale ACCETTULLO at al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Paul A. Good, Boston, for defendants.
Alexander E. Finger, Boston, for plaintiffs.
Before TAURO, C.J., and SPALDING, KIRK, REARDON, and QUIRICO, JJ.
This is a suit in equity seeking rescission of the plaintiffs' purchase of real estate, chattels and a retail business from the defendants. The plaintiffs allege that they were induced to make the purchase by intentional misrepresentations by the defendants concerning the existence and condition of sewage disposal facilities on the land.
The case is before us on the defendants' appeal from the final decree granting relief to the plaintiffs on the basis of facts found by a master. There were no objections or exceptions to the master's report and there is no appeal from the interlocutory decree confirming the report. 'The findings of fact of the master thus became conclusive between the parties.' Perry v. Oliver, 317 Mass. 538, 59 N.E.2d 192. Tucker v. Poch, 321 Mass. 321, 322, 73 N.E.2d 595. It is now our duty, as it was the duty of the trial judge, 'to see that the final decree is such as the law requires upon the facts found by the master.' Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High Sch Bldg. Comm. of Westfield, 345 Mass. 267, 271, 186 N.E.2d 911, 915. Lupien v. First Fed. Sav. & Loan Assn., 351 Mass. 311, 314, 218 N.E.2d 706.
The facts found by the master are stated to the extent necessary for this decision. On June 28, 1966, the plaintiffs purchased from the defendants a parcel of land with a dwelling and a store thereon located at 204--206 Main Street in North Reading, Massachusetts, together with the fixtures, equipment and good will of a retail ice cream business which the defendants conducted on the premises. The purchase price of $55,000 was paid by the plaintiffs as follows: $43,000 in cash (consisting of $13,000 of their own money and $30,000 which they borrowed from a bank on a first mortgage of the real estate purchased), and the balance of $12,000 by a note to the defendants, secured by a second mortgage on the same real estate. Thereafter the plaintiffs made four payments in the total amount of $625.93 on the second mortgage.
Before making the purchase the plaintiffs inspected the property and discussed the sewage disposal facilities with the defendants. The defendants told the plaintiffs that 'they had a system that was good and that it gave them no trouble for 19 years.' They pointed out to the plaintiffs a place to the rear of the house and the store and on the lot being sold which they said was the location of the septic tank or tanks. The defendants knew that these statements were not true. About two years previously they had received a complaint from a neighbor about the sewage disposal system, and at that time they knew that there was no septic tank on the lot where the house and the store were located. They also knew that the sewage from those buildings flowed by pipes under a street which adjoined the lot on one side and continued to a second lot of the defendants located on the opposite side of the street. The sewage ultimately entered a septic tank on the second lot, but because the tank was inadequate, it overflowed the surface of the second lot. The defendants knowingly misrepresented the facts on the sewage disposal system intending that the plaintiffs rely thereon. The plaintiffs did rely on them in purchasing the property.
On or about September 29, 1967, the plaintiff Joseph Limoli received a letter from the town board of health stating that 'the property was in violation of the State Sanitary Code in that * * * (sewage) was being discharged to the surface of the ground and the said plaintiff was given five (5) days to remedy the situation and abate the nuisance.' The plaintiffs promptly engaged a registered sanitarian to look into the sewerage problem. He made tests on their property and concluded that it was impossible to repair the condition for the reasons that the 'lot had a high water table, the ground was clay with a high degree of plasticity not suitable for subsurface disposal of * * * (sewage) and the physical size of the deeded property was too small to comply with the State Sanitation Code.' The study also disclosed that there was no septic tank on the lot. The plaintiffs made no changes or repairs on the sewerage system.
On October 9, 1967, the board of health ordered the plaintiffs' ice cream parlor business to be closed, and the director of public health suspended their food service permit. The business was thus closed. The board permitted the plaintiffs and their children to continue to reside in the house on the property, using the toilet and bath facilities, and they were still residing there in August, 1969.
In June, 1968, the bank foreclosed its first mortgage on the real estate and was the purchaser at the foreclosure sale. The record does not indicate the payments, if any, made on that mortgage, the balance due thereon when it was foreclosed, or the price realized from the foreclosure sale. On November 3, 1969, the defendants repossessed the chattels they had sold the plaintiffs in 1966, and they were sold at public auction by order of the defendants. The record does not indicate the nature of the defendants' security interest, if any, in the chattels or the price received for them at the auction sale.
The plaintiffs filed their bill for rescission on October 26, 1967, which was less than one month after they...
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