Solomon v. Birger

• Decision Date: 26 June 1985
• Citation: 477 N.E.2d 137,19 Mass.App.Ct. 634
• Parties: Mark SOLOMON et al. 1 v. Marvin BIRGER et al. 2
• Court: Appeals Court of Massachusetts

Page 137

477 N.E.2d 137

19 Mass.App.Ct. 634

Mark SOLOMON et al. ¹ v. Marvin BIRGER et al. ²

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 26, 1984.

Decided April 22, 1985.

Further Appellate Review Denied

June 26, 1985.

Edward Greer (Jeanne Baker, Boston, with him), for plaintiffs.

Michael R. Coppock, Boston, for defendants.

Before BROWN, KASS and SMITH, JJ.

KASS, Justice.

By complaint filed August 7, 1979, Mark Solomon and Pauline Solomon (the "buyers") alleged that on December 9, 1968, i.e., eleven years previously, Marvin Birger and Eleanor Birger (the "sellers") had induced them through misrepresentation to buy a defective house. A Superior Court judge entered summary judgment in favor of the defendant sellers. ³ This appeal followed. The basis urged by the defendants in favor of summary judgment was that the plaintiffs' action was long time-barred.

We summarize certain undisputed facts which we are able to deduce from a mass of affidavits, answers to interrogatories, responses to notices to admit facts, and depositions. The house in question is located at 104 Oldham Road, Newton, and was built in 1954, i.e., twenty-five years before this action was brought, by a home builder, Dorchester House Remodeling, Inc. Marvin Birger, one of the defendants, was the first buyer and resident owner. In 1959 Marvin Birger conveyed the property to himself and his wife as tenants-by-the-entirety. They continued to occupy the premises as their home until 1968, the year they sold the house to the plaintiffs.

On June 3, 1968, the Birgers, who were building a new home in Weston, placed their property for sale with a real estate brokerage firm. A broker from that firm took the Solomons through the house on June 22, 1968. There was no conversation of consequence between the prospective buyers and Mrs. Birger, who was at home during the tour. The Solomons were free to inspect the premises. About a month later, on July 5, 1968, the Solomons made a written offer to buy the Birger house for $36,000, an offer which the Birgers accepted. The offer form contemplated execution of a purchase and sale agreement and the parties, under date of July, 1968, ⁴ executed an agreement on the Greater Boston Real Estate Board form (1962 rev.). Once again, the record discloses no conversation of consequence between the buyers and the sellers, and, indeed, neither of the sellers was present when the Solomons signed the agreement.

Delivery of the deed occurred on December 9, 1968. During the interim, the Solomons made a number of visits to the house. On one such visit Mrs. Birger took a painter through the house to estimate painting work to be done. Above an archway leading to the bedrooms, the painter noticed a crack five feet long and about an eighth of an inch wide. "What is this crack?" he inquired. Mrs. Birger replied, "Oh, it is probably from sonic boom." Mrs. Solomon construed that remark as "kind of" facetious. That statement is the one upon which the plaintiffs have fixed as the Birgers' oral misrepresentation of the condition of the house. ⁵ There is no record of any other statement by the Birgers regarding the structural integrity of the house. So far as appears, neither the Solomons nor anyone on their behalf made a physical inspection, other than the walk through with the painter.

Within a few months after they moved in, Mr. Solomon discovered a large crack in the basement slab when he pulled back a rug. In 1970, the Solomons replaced a lower retaining wall, and, in 1973, they added a buttress wall at the rear of the house in an attempt to arrest movement of the back wall. In 1974, the Solomons noticed cracks in their front and rear foundation walls. There followed a series of consultations with engineers, contractors, and building consultants. One of the first of these, Tsiang Engineering, Inc., in 1975 reported that the house was settling because of, among other reasons, poor soil condition, horizontal soil pressure, poor fill material, and insufficient compaction of fill.

During the discovery phase of the case, the battle was fought over the buyers' charge that the sellers had misrepresented and concealed the condition of the premises. The plaintiffs have conceded that a tort claim based on misrepresentation is time-barred, even giving effect to the extension provision which G.L. c. 260, § 12, makes available in case of fraudulent concealment. ⁶ Rather, the plaintiffs urge two theories of recovery linked to the purchase and sale agreement, an instrument expressed by its terms as under seal, and upon which the plaintiffs argue they can, therefore, maintain an action within twenty years of the date the cause of action accrued. G.L. c. 260, § 1. The first of those theories is that the Birgers committed fraud in the inducement of the contract when Mrs. Birger made the "sonic boom" response to the painter's inquiry about the crack in the arch. A second theory relies on a clause in the contract which required delivery of possession of the premises "not in violation of ... building laws."

1. Fraud. Actions for damages based on deceit sound in tort, a fact reflected in reported cases where the gravamen was that the plaintiff had been induced into a real estate transaction through the misrepresentation of a material fact by the defendant. See, e.g., Sheffer v. Rudnick, 291 Mass. 205, 205, 196 N.E. 864 (1935); Forman v. Hamilburg, 300 Mass. 138, 139, 14 N.E.2d 137 (1938) (wherein it is noted, however, at 142, that upon discovery of the fraud the plaintiff could have elected to rescind the contract); Swinton v. Whitinsville Sav. Bank, 311 Mass. 677, 677-678, 42 N.E.2d 808 (1942); Kabatchnick v. Hanover-Elm Bldg. Corp., 328 Mass. 341, 342, 103 N.E.2d 692 (1952); Fogarty v. Van Loan, 344 Mass. 530, 183 N.E.2d 111 (1962) (whether action for breach of warranty will lie for oral representation of quality of real estate not decided); Friedman v. Jablonski, 371 Mass. 482, 483-484, 358 N.E.2d 994 (1976); Nei v. Burley, 388 Mass. 307, 310, 446 N.E.2d 674 (1983); Henshaw v. Cabeceiras, 14 Mass.App. 225, 225-226, 437 N.E.2d 1072 (1982). ⁷

If we were to apply to the normal statute of limitations of three years ⁸ the extension which G.L. c. 260, § 12, affords, the latest the plaintiffs could have brought a tort action was within three years after they received the Tsiang report dated August 12, 1975. From that report the plaintiffs learned that their house suffered from a serious foundation defect, even if they may have been uncertain of its precise extent and nature. See Mansfield v. GAF Corp., 5 Mass.App. 551, 555, 364 N.E.2d 1292 (1977). It will be recalled that the plaintiffs did not file their action until August 7, 1979. Conscious of that hurdle, the plaintiffs, after substantial discovery, filed with the court an election to abandon all actions other than those "based upon contract under seal." They did not, however, opt for rescission, a contract remedy that is available as an alternative to a tort action for deceit, although generally in circumstances where there has been only partial or relatively recent performance of the contract. See Forman v. Hamilburg, 300 Mass. at 142, 14 N.E.2d 137; Geoffrion v. Lucier, 336 Mass. 532, 537, 146 N.E.2d 654 (1957); McMahon v. M & D Builders, Inc., 360 Mass. 54, 271 N.E.2d 649 (1971); 12 Williston, Contracts § 1523 (3d ed. 1970). Cf. National Academy of Sciences v. Cambridge Trust Co., 370 Mass. 303, 309, 346 N.E.2d 879 (1976). Actions for rescission must be brought with reasonable promptness. 12 Williston, supra § 1526, at 622. Cf. Restatement (Second) of Contracts §§ 164 and 380(2) (1979). Rather, the plaintiffs argue that since the defendants' alleged misrepresentation served to induce the plaintiffs to sign the purchase and sale agreement as an instrument under seal, they may sue for damages on the basis of the misrepresentation at any time within twenty years of the performance of that contract.

An action on a written contract under seal enjoys a long statute of limitations because "the writing is clear evidence in permanent form of the terms of the agreement ...." 18 Williston, Contracts § 2020, at 678 (3d ed. 1978). A misrepresentation of the sort here alleged is not written into the agreement and such evidence as the plaintiffs proffer is entirely oral.

The ephemeral nature of unwritten representations and the natural tendency of persons to reconstruct history in a self-justifying manner are considerations which militate in favor of restricting the time in which an action may be founded on them. In choosing the correct limitations period we look to the essential nature of the action, not its form. Hendrickson v. Sears, 365 Mass. 83, 85, 310 N.E.2d 131 (1974). Here the essential nature is deceit. The plaintiffs' theory would stretch the limitations period far beyond the extension already worked in cases of fraudulent concealment by the remedial provisions of G.L. c. 260, § 12. It is a theory we do not endorse. Even were we to adopt the plaintiffs' reasoning, it would not help them. The asserted misleading statement was made several months after the parties signed the purchase and sale agreement and, therefore, could not have induced the plaintiffs to enter into the contract.

That the defendants failed to mention the house had developed cracks, including one in the basement obscured by floor covering, does not constitute fraudulent concealment. Homeowners who sell their houses are not liable for bare nondisclosure in circumstances where no inquiry by a prospective buyer imposes a duty to speak. Swinton v. Whitinsville Sav. Bank, 311 Mass. at 678-679, 42 N.E.2d 808. Nei v. Burley, 388 Mass. at 310-311, 446 N.E.2d 674. Henshaw v. Cabeceiros, 14 Mass.App. at 227, 437 N.E.2d 1072. There must be some affirmative act of concealment of the cause of action. Salinsky v. Perma-Home Corp., 15 Mass.App. 193, 197, 443 N.E.2d 1362 (1983). Compare Kannavos v. Annino, 356 Mass. 42,...