New England Found. Co. Inc. v. Elliott A. Watrous, Inc.

• Decision Date: 03 June 1940
• Parties: NEW ENGLAND FOUNDATION CO., Inc., v. ELLIOTT A. WATROUS, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 177

27 N.E.2d 756

NEW ENGLAND FOUNDATION CO., Inc.,

v.ELLIOTT A. WATROUS, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

June 3, 1940.

Exceptions to Superior Court, Suffolk County; Greenhalge, Judge.

Action of tort for deceit by the New England Foundation Company, Inc., against the Elliott A. Watrous, Inc. The trial judge sitting without a jury found for the defendant on counts based on alleged breach of warranty and for the plaintiff in the sum of $3,481 on count for deceit and defendant brings exceptions and plaintiff filed motion to amend its declaration.

Motion granted and exceptions overruled.

W. P. Everts, of Boston, for plaintiff.

S. Markell and L. W. Black, both of Boston, for defendant.

COX, Justice.

This was originally an action of contract for breach of warranty. By amendment the action became one of contract or tort and a fourth count was added to the declaration. The case was tried by a judge of the Superior Court sitting without a jury, who found for the defendant on the counts based upon the alleged breach of warranty and for the plaintiff on the fourth count.

Apart from an exception to the admission of evidence, which has not been argued, the bill of exceptions does not disclose that the defendant saved any exceptions. A reference to the docket entries of the Superior Court and to the certified copy of a document there filed, however (see Sherman v. Sidman, 300 Mass. 102, 14 N.E.2d 145), discloses that the defendant seasonably claimed exceptions to rulings of the trial judge (Rule 72 of the Superior Court [1932]), and these exceptions constitute the subject matter of the bill of exceptions.

1. The judge denied two requested rulings of the defendant to the effect that all counts of the plaintiff's declaration sound in contract and not in tort, and that the plaintiff cannot recover in tort for fraud or deceit. The fourth count of the declaration is as follows: ‘And the plaintiff says that on the 14th day of February, 1935, the defendant agreed in consideration of $4,500 to sell the plaintiff certain machinery and equipment and a vulcan hammer f. o. b. Providence, Rhode Island, and that the defendant falsely warranted and falsely represented to the plaintiff that the machinery and equipment would be in perfect working order on February 18, 1935 and that the machinery and equipment as sold would operate as a dredge and would be capable of dredging 90 cubic yards of solids per hour, and the plaintiff says that the said representations and warranties were untrue, all of which the defendant well knew, and the plaintiff says that it relied on said representations and warranties as made by the defendant with the intention that the plaintiff should rely thereon, and paid the defendant $2000 on account of said purchase price, but that the defendant did not regard his promise aforesaid but craftily deceived the plaintiff in that it delivered machinery and equipment which was not in perfect working order on February 18, 1935, and which would not operate as a dredge capable of handling 90 cubic yards of solids per hour. Wherefore the plaintiff says because of the defendant's deceit and false and fraudulent misrepresentations and warranties upon which it relied it has been damaged to the extent as alleged in the writ. Count 1 and 4 are for the same cause of action.’

We are of opinion that this count sufficiently states a cause of action for deceit. It alleges that the defendant made representations of certain facts that were untrue, as the defendant knew, and that the plaintiff relied upon these representations to its damage. It is true that the count alleges that the defendant ‘falsely warranted and falsely represented’ these facts. But where, as here, the action was originally in contract and, by amendment, was changed to one of contract or tort, and where the claim for damages is based upon the ‘defendant's deceit and false and fraudulent misrepresentations and warranties,’ it being alleged that counts 1 and 4 are for the same cause of action (see G.L. [Ter.Ed.] c. 231, § 7, Sixth), we think that the defendant had plain notice that it was called upon to answer to an action of tort for deceit. Furthermore, it appears that more than two years after the answer to the original declaration was filed the defendant was permitted to amend its answer by a further allegation that, if it made any express or implied warranties to the plaintiff that were breached, these breaches were waived by the plaintiff, whereupon within a week the plaintiff was allowed to amend its declaration. See Cooper v. Landon, 102 Mass. 58. We are of opinion that the requested rulings in question were properly denied.

2. Three of the defendant's requests for rulings that were denied in substance raise the question of the sufficiency of the evidence to warrant a finding for the plaintiff upon the fourth count, hereinbefore quoted. The trial judge found that there were false representations made by the defendant to the plaintiff in respect of (1) the capacity of the dredge that was the subject matter of the sale to pump ninety yards of solids per hour; (2) the fitness of the dredge and its equipment for the dredging called for by the plaintiff's contract; (3) the kind and condition of equipment; and he also found that the plaintiff relied upon the last two representations.

The allegations of the fourth count, however, are not so comprehensive as these findings. There is a specific allegation of a representation as to the dredging capacity of the machine that was the subject matter of the sale, and the judge found that this representation was made, but he states that he is in doubt as to the extent to which the plaintiff relied upon it. The plaintiff has presented to this court a motion to amend its declaration by substituting a new count 4 that contains allegations of representations concerning the fitness of the dredge for the service required of it by the plaintiff and its condition, both of which were the subject matter of findings by the judge. An examination of the record discloses that the issues of fact as to which the judge made specific findings were fully and fairly tried, and it is difficult to see that the defendant will be harmed in any way by the allowance of the amendment. In the circumstances, the general finding of the judge ought not to be reversed upon a technical point of pleading. Under G.L.(Ter.Ed.) c. 231, § 125, this court has all the powers of amendment of the court below. A motion of this character will not be granted save in instances where justice seems to require it. Twombly v. Selectmen of Billerica, 262 Mass. 214, 216, 159 N.E. 630;Cammisa v. Ferreira, 277 Mass. 141, 142, 178 N.E. 8. But where it is apparent from the record as a whole that the case was fully and fairly tried upon the real issues of fact involved, untained by any error of law, it is proper to allow an amendment that will prevent a re-trial of the very issues that have already been passed upon. Whitney v. Houghton, 127 Mass. 527, 529;Mitchell v. Lonergan, 285 Mass. 266, 271, 189 N.E. 39. See Pizer v. Hunt, 250 Mass. 498, 504, 505, 146 N.E. 7; Id., 253 Mass. 321, 333, 148 N.E. 801. In view of our ultimate conclusion that there was no error of law, we think the motion should...