Mignault v. Goldman

• Decision Date: 29 November 1919
• Citation: 125 N.E. 189,234 Mass. 205
• Parties: MIGNAULT v. GOLDMAN. (two cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 205

125 N.E. 189

MIGNAULT

v.GOLDMAN. (two cases.)

Supreme Judicial Court of Massachusetts, Essex.

Nov. 29, 1919.

Exceptions from Superior Court, Essex County; Loranus E. Hitchcock, Judge.

Actions by Rose A. M. Mignault against Albert Goldman and against Annie Goldman. Verdicts for plaintiff, and defendants except. Exceptions overruled.

Defendants' requests for instructions were as follows:

1. That upon all the evidence the plaintiff is not entitled to recover.

2. That upon all the evidence there was no misrepresentation of any material fact, and their verdict must be for the defendant.

3. That none of the representations relied upon by the plaintiff are material representations, which justify her in relying upon same, and their verdict must be for the defendant.

4. That the plaintiff is not now entitled to relief if the alleged representations were of facts equally within her knowledge as that of the defendant, or if by the exercise of reasonable care and diligence she could have ascertained the truth or falsity of same, and did not.

5. That the plaintiff was not entitled to recover because of any representations made by L. C. Chandler.

6. That upon all the evidence the said Chandler was not the agent of the defendant, but was the agent of the plaintiff.

7. That upon all the evidence Chandler was the agent of the plaintiff, and therefore the plaintiff cannot recover for any alleged misrepresentations made by him.

8. That the only misrepresentations to support which there is any evidence are:

(a) That one, Batchelder, who occupied a tenement in one of the houses on Forest Street, was paying twenty-five dollars ($25.00) per month as rental therefor.

(b) That the premises were in very good condition, except in a few details, which remained to be finished.

(c) That a certain tenement upon the second floor of one of the houses on Ocean Terrace was occupied by a tenant.

(d) That none of the tenements were vacant except the one on the corner of Ocean Terrace and Clifton Avenue.

9. That there is no evidence to support a finding that the representation ‘a’ was made.

10. That upon all the evidence the plaintiff's agent, Chandler, knew that Batchelder was paying eighteen dollars ($18.00) per month rent and that that knowledge was imputed to the plaintiff and she therefore cannot recover because of such alleged misrepresentation.

11. If Chandler knew that said Batchelder was paying eighteen dollars ($18.00) a month rent, then the plaintiff, in law, was not misled by a misrepresentation as to the amount of rent Batchelder was paying and therefore she cannot recover by reason of said alleged misrepresentation.

12. That the alleged representation set forth as ‘b,’ is not an actionable representation, and the plaintiff cannot recover because of same.

13. That said alleged misrepresentation was a statement of opinion and therefore was not actionable.

14. That upon all the evidence the plaintiff, with her agent, had full opportunity to inspect said premises and did inspect so much of the premises as she and he desired, and she cannot recover for any representation concerning the condition of said premises which was observable or ascertainable upon investigation.

15. That there is no evidence that the plaintiff or her agent were discouraged or prevented from making the fullest investigation and examination of said premises and the plaintiff cannot therefore recover for any alleged representation concerning the condition of said premises which was observable or ascertainable by investigation.

16. That there is no evidence that said representation marked ‘c’ was false.

17. That upon all the evidence, said tenement was occupied by one Atkinson.

18. That the said plaintiff and her agent, said Chandler, knew that said Atkinson was in the tenement on said premises at the time of the purchase by the plaintiff.

19. That said Atkinson, upon all the evidence, did not remove from said premises until after said plaintiff (through her agent, Chandler) took possession of same.

20. The there is no evidence that said representation marked ‘d’ was made.

21. That upon all the evidence, the said plaintiff, through her agent, knew there was a vacant tenement in said Ocean Terrace property and therefore the plaintiff cannot recover upon such alleged misrepresentations.

22. Knowledge of the plaintiff's agent, Chandler, is in law, knowledge of the plaintiff.

23. That upon all the evidence, the defendant promised to make such repairs as were necessary, and according to the evidence did make such repairs, and the plaintiff cannot recover in this action for his failure so to do.

23a. The plaintiff cannot recover in this action for the defendant's failure to make repairs.

24. That upon all the evidence, the plaintiff saw the alleged defective condition of said building and protected herself by a contract from the defendant to repair same and therefore she cannot recover for any representation made concerning said condition by the defendant.

25. If the plaintiff saw the alleged defective condition of said building and protected herself by a contract from the defendant to repair same and therefore she cannot recover for any representation made concerning said condition by the defendant.

26. That upon all the evidence, the plaintiff had full knowledge of the condition of said premises and therefore cannot recover in this action for any representations made concerning said condition.

27. If the plaintiff had full knowledge of the condition of said premises she therefore cannot recover in this action for any representations made concerning said condition.

28. That upon all the evidence, the plaintiff relied upon the skill and knowledge of her agent, Chandler, and not upon any representation of the defendant and therefore she cannot recover.

29. If the plaintiff relied upon the skill and knowledge of her agent, Chandler, and not upon any representation of the defendant, she therefore cannot recover.

30. If the premises were worth thirty-one thousand dollars ($31,000.00) or more, then the plaintiff cannot recover.

31. If the premises were worth thirty-one thousand dollars ($31,000.00) or more, then the plaintiff cannot recover more than nominal damages.

32. If the premises were worth thirty-one thousand dollars ($31,000.00) or more and the plaintiff expended in repairing same three hundred and fifty dollars ($350.00), the plaintiff cannot recover same under this form of action.

33. If the premises were worth thirty-one thousand dollars ($31,000.00), or more, then the plaintiff cannot recover more than the amount she paid for repairs of said premises.

34. If the defendant had a contract with a contractor, which obligated said contractor to finish said work or complete said buildings in good and workmanshiplike manner and the defendant believed that the same had been completed, then the plaintiff cannot recover from the defendant because of any alleged representations as to the condition of said premises if they turned out to be incorrect.

Michael L. Sullivan and James J. Ronan, both of Salem, for plaintiff.

William E. & Richard L. Sisk, of Lynn, and William D. Chapple, of Salem, for defendants.

CARROLL, J.

These are two actions to recover damages for false and fraudulent representations made by the defendants, which induced the plaintiff to purchase certain real estate belonging to the defendant Albert Goldman. The defendant Annie Goldman, the wife of Albert, acted for him in the sale of the property. The purchase price was $31,000. The jury found for the plaintiff in each case.

1. There was evidence for the jury that it was represented to the plaintiff by Mrs. Goldman that Blanchard, one of the tenants, was paying a rental of $25 a month when in fact he was paying but $18 a month; and that the misrepresentation was fraudulently made. If the jury believed this, then a false and fraudulent statement of a material fact relied on by the plaintiff, which entered into the substance of the contract, was made by the defendant, and a case of deceit practiced on the plaintiff was made out for which she can recover. Kilgore v. Bruce, 166 Mass. 136, 44 N. E. 108;Boles v. Merrill, 173 Mass. 491-494, 53 N. E. 894,73 Am. St. Rep. 308;Kerr v. Shurtleff, 218 Mass. 167, 105 N. E. 871;Bates v. Cashman, 230 Mass. 167, 119 N. E. 663.

2. The plaintiff testified that Mrs. Goldman represented to her that the income from the property was sufficient to pay the interest on the mortgages, the fixed charges, and give her an income...