Rollins v. Quimby

• Decision Date: 24 November 1908
• Parties: ROLLINS v. Quimby
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 162

86 N.E. 350

ROLLINS v. Quimby

Supreme Judicial Court of Massachusetts, Worcester.

November 24, 1908

COUNSEL

John A. Thayer, Charles B. Perry, and Archer R. Greeley, for plaintiff.

Marvin M. Taylor, for defendant.

OPINION

MORTON J.

The evidence warranted a finding that the plaintiff was induced to sell the farm and stock by representations made by the defendant that the mortgages which he proposed to trade for the farm and stock 'were first mortgages just as good as money in the bank,' and that these representations were in part at least false and fraudulent. One of the mortgages was a first mortgage for $500 on real estate in Stoneham; one was a second mortgage for $2,200 on real estate in Worcester and the other was a third mortgage for $2,300, also on real estate in Worcester. The defense is that the damages, if any which the plaintiff has sustained, were the result of her own negligence and that of her husband who acted as her agent. There was no testimony as to the value of the properties subject to these mortgages and the adequacy or inadequacy of the mortgages as security for the amounts named, and the plaintiff's case must stand or fall, therefore on the representation that they were first mortgages.

The law does not attempt to save parties from the consequences of their own improvidence and negligence; but it looks with even less favor upon misrepresentation and fraud. And accordingly, in later decisions, this court has manifested a disinclination to extend the immunity of vendors for statements or representations made by them beyond the limits already established. Boles v. Merrill, 173 Mass. 491, 53 N.E. 894, 73 Am. St. Rep. 308; Kilgore v. Bruce, 166 Mass. 136, 44 N.E. 108; Way v. Ryther, 165 Mass. 226, 42 N.E. 1128; Whiting v. Price, 172 Mass. 240, 51 E. 1084, 70 Am. St. Rep. 262; Arnold v. Teel, 182 Mass. 1, 4, 64 N.E. 413; Long v. Athol, 196 Mass. 497, 505, 82 N.E. 665.

There can be no doubt that the representation that the mortgages were first mortgages was a material representation of fact and not seller's talk, and the plaintiff's husband testified in effect that he relied upon it and would not have considered the matter if he had known that the mortgages were second mortgages. The defendant contends that it could have been readily ascertained by the plaintiff and her husband, from an examination of the documents themselves and from the records, that two of the mortgages were not first mortgages, and that, if she and her husband took them as such, and have suffered damages thereby, it was due to their own carelessness and he is not liable for such damages.

So far as appears, the plaintiff had no knowledge concerning business matters of the nature of those involved in the transaction, and there was testimony tending to show that her husband was also inexperienced. If they were inexperienced, the degree of care required of them would be, or might be found to be, different from that required of them if they possessed the requisite knowledge and skill to put them on an equal footing with the defendant. 'False statements,' for instance, 'as to market value may not be actionable if made to an experienced dealer. * * * But it is otherwise if made to an unskilled person.' Kilgore v. Bruce, 166 Mass. 136, 138, 44 N.E. 108, 109. See, also, Barndt v. Frederick, 78 Wis. 1, 11, 47 N.W. 6, 11 L. R. A. 199; Kendall v. Wilson, 41 Vt. 567, 571. If the plaintiff's husband had little or no experience in looking up titles, and did not know that the records could or should be examined to ascertain whether the mortgages were in fact first mortgages or not, we do not see how it could be ruled as matter of law that he was negligent in not examining the records himself, or in not having them examined by some one else.

Further the plaintiff's husband testified that he spoke of going to a lawyer to have the deed made, and that the defendant said that it was not necessary, that it could be done in Worcester, and the defendant did not go to a lawyer. The jury could have found that this and the representation that the mortgages were first mortgages were calculated and were intended to divert, and did divert, the attention of the plaintiff and her husband from sources of information to which they would or might have resorted but for the confidence which they were induced to place in the defendant. ...