Whiting v. Price

• Decision Date: 23 November 1898
• Citation: 51 N.E. 1084,172 Mass. 240
• Parties: WHITING v. PRICE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 240

51 N.E. 1084

WHITING v. PRICE et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 23, 1898

COUNSEL

G.A. Perkins, for plaintiff.

H.J Fuller, for defendants.

OPINION

HOLMES J.

This is an action for false representations, which has been before the court already upon a demurrer to the declaration. 169 Mass. 576, 48 N.E. 772. It now comes up upon exceptions taken at the trial.

The bond respecting which the representations were made stated that payment was "secured by a first mortgage on all the property, rights, and franchises of said company (present and future acquired)." The representation proved was that the bond was secured by a mortgage of real estate of the value of half a million dollars. In fact the company owned no real estate, and the bond was not secured by a mortgage of real estate. An exception was taken to a ruling allowing the plaintiff, even if he had read the bond, to recover for this further statement about the security. We see no reason for the exception, and none is offered for it. The alleged representations did not contradict the bond; they made specific and definite what the bond left vague.

The defendant Parker stated to the plaintiff, at North Attleborough, what he alleged he had been told by several persons, named, living in the town, and known to the plaintiff. The defendant advised the plaintiff to see and consult with them. The defendant asked a ruling to the effect that the plaintiff could not recover for such statements when he was referred to the sources of the defendant's alleged information. This was refused, the judge intimating that it depended on the circumstances, and seemingly leaving it to the jury whether the plaintiff ought to have inquired of the persons named. So far as appears, this was the proper course. It is true that in cases of representations as to quality correspondence to sample, etc., of goods exhibited in the buyer's presence, the court has ruled that, if the buyer had full means of ascertaining the truth for himself, he could not set up that he was imposed upon by fraud ( Rubber Co. v. Adams, 23 Pick. 256, 265; Slaughter's Adm'r v. Gerson, 13 Wall. 379; Long v. Warren, 68 N.Y. 426), and that a verdict has been directed partly on that ground (Poland v Brownell, 131 Mass. 138). See Bayly v. Merrel, Cro. Jac. 386. But the requirement, as it has been worked out, does not call for more than reasonable diligence (Holst v. Stewart, 161 Mass. 516, 522, 37 N.E. 755; Brown v. Leach, 107 Mass. 364, 368; Nowlan v. Cain, 3 Allen, 261, 264); and distance or other slight circumstances have been held sufficient to warrant leaving the question to the jury (Holst v. Stewart, 161 Mass. 516, 522, 523, 37 N.E. 755). See Burns v. Lane, 138 Mass. 350, 355, 356; Whiteside v. Brawley, 152 Mass. 133, 24 N.E. 1088. The matter may have been confused a little by not distinguishing between sellers' talk as to value and the like, where the rule is absolute in ordinary cases that the buyer must look out for himself, and representation of facts concerning which even sellers may be held liable for fraud, and as to which the buyer may be warranted in relying wholly on the seller's word. The notion that the buyer must look out for himself sometimes has been pressed a little too strongly into the latter class of cases.

The judge, at the defendants' request, instructed the jury that the measure of damages was the difference between the actual value of the bond at the time of the purchase and its value if it had been what it was represented to be, secured as represented. Morse v. Hutchins, 102 Mass. 439 440; Nash v. Trust Co., 163 Mass. 574, 587, 40 N.E. 1039. He then instructed them, further, that they "would inquire what the value of the bond was at that time, in view of the circumstances which have transpired," and what it would have been if it had been secured as according to the plaintiff's evidence the defendant said it was, adding: "You will take into account what has happened since, in order to determine what the value of the bond was and what it is now." The defendants excepted to the further instruction. With some hesitation, we have come to the conclusion that this exception should be overruled with the rest. The reference to the present value of the bond in the last words quoted cannot be taken to have overruled the express direction as to how the damages were to be measured. We think that what was added to that express direction merely amounted to allowing the jury to take subsequent events into account in arriving at the two...