Pietrazak v. McDermott

• Decision Date: 19 May 1960
• Citation: 341 Mass. 107,167 N.E.2d 166
• Parties: Theodore S. PIETRAZAK et al. v. Lester J. McDERMOTT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 166

167 N.E.2d 166

341 Mass. 107

Theodore S. PIETRAZAK et al. v. Lester J. McDERMOTT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 9, 1960.

Decided May 19, 1960.

Warren W. Allgrove, Lowell, for plaintiffs.

P. Harold Ready, Lowell, for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and CUTTER, JJ.

WILLIAMS, Justice.

This is an action of contract or tort in which the first count of the declaration alleges deceit and the second count breach of warranty in connection with the sale by the defendants of a house and land to the plaintiffs. The case came before a judge of the Superior Court upon the plaintiffs' motion for judgment on the report of an auditor whose findings of fact were not final. Rule 88 of the Superior Court (1954). The judge found generally for the plaintiffs. The defendants 'treating the finding as an allowance' of the plaintiffs' motion (see Thurlow v. Crossman, 336 Mass. 248, 250, 143 N.E.2d 812) excepted to the 'order for judgment.'

The auditor found that in the spring of 1955 the defendants, who we assume were husband and wife, were building a single one story frame dwelling house in Lowell. When it was substantially completed, Angie Pietrazak, one of the plaintiffs and wife of the other plaintiff, looked at it with a view to a possible purchase. She went back on a number of occasions to examine it and 'discussed' the house and its purchase price with the builder, the defendant McDermott. As a result of seeing a puddle of water in the middle of the cellar floor on one of her visits, Mrs. Pietrazak asked McDermott about water in the cellar and discussed with him whether the cellar would be dry. McDermott stated 'that he built a good house and that there would be no water in the cellar.' He later repeated the statement 'prior to passing papers.'

No purchase and sale agreement was executed. Papers were passed and title transferred by the defendants to the plaintiffs on June 23, 1955, at a price of $12,000. The latter moved in on July 1 and in the following months panelled a portion of the cellar and laid a tile floor. They built and furnished a so called 'rumpus' room. In September during a heavy rainstorm water entered the cellar to such an extent that the fire department was called to pump it out. 'Thereafter on many occasions of heavy rainstorms, prolonged rainy periods, or snow thaws, water entered the cellar.' It came in 'at various points between the foundation and the cellar floor, and, until the holes were filled with cement, at places in the foundation walls where steel tie rods were imbedded.' The water caused damage to the cellar and to personal property. The cost of 'corrective' work to prevent water entering the cellar will be $850. The damage to personal property and the cost of refinishing the cellar is $100.

The auditor found that 'the defendants did not know that water would enter the cellar at the points described, nor that it would enter in any substantial quantities when * * * [McDermott] made the statement' that 'there would be no water in the cellar.' He made the statement 'in good faith and had no intention of deceiving or defrauding the plaintiffs.' It 'was made of his own knowledge and was a false though innocent misrepresentation of a material fact, * * * the plaintiffs relied upon the truth of this statement * * * and * * * it was an essential factor in their being induced to buy this house.'

In conclusion the auditor reported, 'I find for the plaintiffs on count 2 of the declaration in the amount of $950. I, therefore, find for the plaintiffs and assess damages in the amount of $950.' See Mahoney v. C. & R. Const. Co., 311 Mass. 558, 559, 42 N.E.2d 255. The first sentence appears to be a ruling of law that the plaintiffs could recover...