Maxwell v. Ratcliffe
| Decision Date | 31 December 1969 |
| Citation | 356 Mass. 560,254 N.E.2d 250 |
| Parties | Robert F. MAXWELL et al., v. Edward F. RATCLIFFE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Daniel J. Johnedis, Boston, for plaintiffs.
No argument or brief for defendants.
Before SPALDING, CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.
In this action of tort or contract Maxwell and his wife seek to recover damages alleged to have been sustained by misrepresentations concerning a house sold by Ratcliffe to the Maxwells. 1 The case is before us on a bill of exceptions on which the Maxwells now present only the question whether the trial judge correctly directed a verdict for each of Ratcliffe's two brokers, Jose Henriques and Marshall T. Slater, on the counts in tort against them, respectively. The jury could have found the facts stated below.
The Maxwells on October 4, 1964, stopped at Henriques's real estate office. They found there Slater and his wife. Mrs. Maxwell told Slater she wanted to buy a small ranch house with specifications mentioned by her. Slater drove the Maxwells to 20 Davis Street, Woburn, and showed the Maxwells the house, including the cellar. Mrs. Maxwell 'told Slater the cellar looked large enough to build a room there' to use as a playroom for her grandchildren. She 'saw a hole in the cellar and something sticking out of it.' She 'asked Slater what it was, and he said he did not know.' Her husband 'said it looked like a pump.' She said, '(W)hat's a pump doing here?' Slater 'said he didn't know but * * * it didn't look as if it had been used.' The cellar was then dry and there was no water in the hole. Mrs. Maxwell asked, '(I)s the cellar dry?' Slater replied that the Ratcliffes 'had a 9 12 rug on the other side of the cellar and it was dry.' She also 'asked Slater why there wasn't any bulkhead there, and he said that he didn't know and that it's dry.' She believed and relied upon Slater's representation, and Henriques's representations mentioned below, that the cellar was dry 'in making her decision to buy the house, and would not have bought the house had she known that the representation was not true because she wanted to build a room in the basement.'
Mrs. Maxwell went to the house again on October 7 with her daughter and a friend, William A. Curry, 'who was going to try to build the playroom.' They met Henriques at his office and were driven by him to the house. While in the basement 'they asked Henriques why the pump was there, and he said he didn't know, that they may have had water at some time.' Curry also 'talked with Henriques about building the room and asked if the cellar was dry, and Henriques said the cellar was dry.' 2 Mrs. Maxwell then said that Slater 'had told her there was a rug on the floor and she took it for granted that it was dry.'
The Maxwells bought the house and moved in on November 7. About five to six weeks later water came into the cellar 'except during dry spells' and the pump 'did not take care of the water.' The playroom was never built because the cellar 'was wet * * * and the floor had water on it.' Some property was damaged by water.
Ratcliffe told a broker, one DiPanfilo, about the water problem when he went to him about selling the house. There was later a multiple listing of the house and the executive secretary of a real estate board sent information about this house to each member of the board's multiple listing service, including Henriques's office. The 'listing stated in part that the list price was $16,500 and contained the following remarks: 'Sump pump in cellar, gets some water seepage periodically. " It was agreed that Slater and Henriques were engaged as brokers for Ratcliffe in the sale of the house.
The evidence summarized above came from several witnesses called by the Maxwells. Verdicts were directed for Slater and Henriques at the close of the...
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