Picard v. Allan

• Decision Date: 29 December 1933
• Citation: 285 Mass. 15,188 N.E. 387
• Parties: PICARD v. ALLAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 15

188 N.E. 387

PICARD

v.ALLAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 29, 1933.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of tort or contract by Archie Picard against Hugh Allan, alias High Allen. At the trial in the superior court, the judge ordered a verdict for the defendant, and plaintiff saves exceptions.

Exceptions sustained.

Edith Brams, Frank Ramacorti, and John W. Vaughan, all of Boston, for plaintiff.

Frost & Breath, of Boston, for defendant.

CROSBY, Justice.

This is an action to recover damages for alleged fraud and misrepresentation in the sale of an automobile repair shop. The declaration is in two counts, one in contract, the other in tort. The case was tried in the Superior Court, and at the close of the evidence the defendant moved in writing that a verdict be directed in his favor. The motion was allowed, and the plaintiff excepted.

The plaintiff testified that he saw an advertisement in a newspaper and went to a broker, who gave him a card and sent him to the defendant; that the defendant told him he wanted $2,000 for the service station; that the plaintiff asked him ‘What have you got for $2000,’ and the defendant replied that he had a lot of tools, and a service station; that the plaintiff said ‘What is that,’ and the defendant answered ‘The Cambridge Nash Service. We service the Nash car’; that the plaintiff inquired what else he had and the defendant said ‘Well, that is about all I have got, the Nash service is a whole lot to me here.’ The plaintiff further testified that during the conversation the defendant told him that he was getting the work from the Cambridge Nash, the income therefrom being about $300 a week, and work on other cars outside of that would probably be $150 or $200 a week, that he valued the tools at $1,000, and the other $1,000 was represented by ‘the service I get from the Nash.’ The plaintiff further testified that during the first weeks he conducted the shop he took in about $400, and during the first two weeks he did not receive any business from the Cambridge Nash Company; that fifteen days after the sale the defendant came to the shop and the plaintiff said to him ‘You told me you were getting the work from the Cambridge Nash averaging $300.00 a week and I didn't get five cents' worth of it,’ to which the defendant replied, ‘Well, I always did their work’; that the plaintiff further told him he had been to the Cambridge Nash Company and made inquiry and was there told that the company never sent the defendant any work, it had a repair shop of its own; that the defendant then asked ‘Well, what do you want me to do’ and the plaintiff replied ‘Refund my money and take your place,’ and the defendant said ‘That is your hard luck if you got it.’ The plaintiff stayed in the place about nine months after that conversation.

The defendant testified that he did not tell the plaintiff he had all the repair work of the Cambridge Nash Company, or that the Nash car service amounted to $300 and more a week.

The plaintiff called as a witness the president and general manager of the Cambridge Nash Company who testified that the company had a service station about a quarter of a mile from the shop which the plaintiff purchased of the defendant, and that in May or June before the sale to the plaintiff he talked with the defendant about his right to use the name Cambridge Nash Service, and later the defendant told him he was going to continue to maintain his sign ‘Cambridge Nash Service.’

Upon the conflicting evidence it was a question of fact for the jury to determine...