Vouros v. Pierce

• Decision Date: 01 March 1917
• Citation: 115 N.E. 297,226 Mass. 175
• Parties: VOUROS et al. v. PIERCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 175

115 N.E. 297

VOUROS et al.

v.PIERCE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1917.

Exceptions from Superior Court, Suffolk County; Chas. U. Bell, Judge.

Action by James Vouros and another against James P. Pierce for fraud in a sale. Verdict for plaintiffs, and defendant brings exceptions. Exceptions overruled.

P. B. Kiernan, of Boston, for plaintiffs.

A. B. Comstock, of Boston, for defendant.

BRALEY, J.

The jury could find the defendant represented that he had a restaurant for sale the weekly gross receipts of which were from twenty-five to forty dollars weekly leaving a net income of ten dollars, and that the plaintiffs who had been employed in restaurant but desired to go into business for themselves believing the representations to be true were induced to purchase, paying part of the consideration when the bargain was struck, and the balance when the bill of sale was delivered at the office of defendant's counsel. The representations were material. Gurney v. Tenney, 197 Mass. 457, 84 N. E. 428;Thomson v. Pentecost, 206 Mass. 505, 92 N. E. 1021. And the defendant has not argued that upon the evidence the jury would not be warranted in finding them to have been false. But he contends, that as assignee of the outstanding mortgage on the chattels described in the bill of sale to the plaintiffs, he transferred all the property for which they bargained. It is not easy to reconcile this defense with his own testimony where after denying that he ever ‘owned a restaurant’ and ‘had no title to it,’ or restaurant for sale, he declared that he never had seen the mortgage on the back of which the unrecorded assignment appears, or had it in his possession. If however under the mortgage and the assignment at their face value he acquired a defeasible title to the property described in the bill of sale subject to be defeated and revested in the mortgagor upon redemption, the jury still could say that his statements at the place were, ‘he had a restaurant for’ three hundred and twenty-five dollars, where they could make a net profit of ten dollars a week, and appointed a time to consummate the sale. Douglas v. Stetson, 159 Mass. 428, 430, 34 N. E. 542,38 Am. St. Rep. 442. The jury could further find on the evidence of the plaintiffs that neither of them being able to read the bill of sale they were assured by the interpreter in the presence of the defendant and his counsel who remained silent, ‘that all belonged to them except the cash register.’ It is plain that the question whether the plaintiffs were given to understand they were buying a going...