Thompson v. Barry

• Decision Date: 25 November 1903
• Parties: THOMPSON v. BARRY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 429

68 N.E. 674

THOMPSON v. BARRY et al.

Supreme Judicial Court of Massachusetts, Essex.

November 25, 1903

COUNSEL

Wm H. Niles, for plaintiff.

Hurlburt Jones & Cabot and Boyd B. Jones, for defendants.

OPINION

KNOWLTON C.J.

On the hearing of this suit the presiding justice found thta the plaintiff was entitled to relief, and ordered a decree in his favor. As the defendants desired to take the opinion of the full court upon the questions of law involved, the judge decided not to enter the decree, and leave the defendants to their right of appeal, with a report of facts to complete the record under Rev. Laws, c. 159, § 23, but availed himself of his power under Rev. Laws, c. 159, § 29 to reserve and report the case, instead of entering a decree. According to the terms of the reservation, if the ruling was right, the decree is to be entered; otherwise such decree as justice and equity require. This is the correct practice in all cases in which the justice desires to present the case to this court without an appeal and a report under section 23.

The defendants contend that the false representations of the defendant Barry, the agent of the defendant corporation in the purchase of the property, did not constitute actionable fraud. The agent deliberately and intentionally deceived the plaintiff in regard to the party who was purchasing. In fact he was acting for the Roman Catholic archbishop of Boston, a corporation, which was endeavoring to buy the land as a site for a Roman Catholic church or chapel. The land was situated on Elmwood Road, between the lot owned by the plaintiff, upon which he had erected an expensive house and stable, where he has resided for about 10 years, and a lot owned by one Earp upon which he erected a house which he occupies as a home. The plaintiff inquired of the agent whether a Catholic was going to buy the propery, and the agent became aware that the plaintiff had a prejudice against Catholicism, and he studiously concealed from the plaintiff the fact that the defendant corporation was the intending purchaser, and that the land was intended to be used as a site for a Roman Catholic church or chapel. He believed that the disclosure of these facts would affect the price, and feared that it might defeat the sale. He had previously been informed by the plaintiff that the land would not be sold except to be occupied by a nice dwelling house to be used as a residence. He informed the plaintiff that his customer was a married man, whose family consisted of a wife and two children; that he was employed by the New York, New Haven & Hartford Railroad Company in a high position, at a salary which he estimated to be at least $6,000 per year; that he was amply able to build and occupy a nice...