Nowlan v. Cain , 85 Mass. 261 ( 1861 )

Hoar, J.

These exceptions cannot be sustained.

1. The defendant asked the court to order a nonsuit, because no cause of action was stated in the declaration. This would have been a good cause of demurrer, and advantage should have been taken of it in that form, if the objection were well founded, or by the request that some appropriate instructions should be given to the jury. But the declaration does set forth a good cause of action. It alleges the sale by the defendant to the plaintiffs of certain property, and that the plaintiffs were induced to purchase it, and pay much more than its value, by reason of certain false and fraudulent representations made by the defendant for the purpose of deception, and with knowledge of their falsity. Some of the representations alleged may not be such as would give a right of action, but many of them certainly are, and they were properly distinguished in the instructions of the court.

2. After the evidence was in, the defendant asked the court to rule that it would not maintain an action. There were various false representations proved, as an inducement to the sale, some of which undoubtedly came under the head of dealers’ talk, and would be insufficient to maintain an action according to the rule which was given to the jury. But there were others to which the jury were warranted in giving a different character. Such were the representations that a horse sold was good and true to work, if he was vicious and incapable of any useful employment ; that the defendant had stands for business which he could transfer to the plaintiffs, if he had none; and as to the amount and extent of the business. The bill of sale of the property was conclusive to show that no warranty was given; but it did not prove conclusively that no false representations had been wilfully made to induce the purchase. Nor did the giving of a bill of sale of the horses and carriages, in which no mention was made of the stands or good will of the business, prove that the latter were not sold to the plaintiffs.

3. No exception was taken to any variance between the declaration and the proof. If there had been, the difficulty might have been obviated by an amendment.

4. The defendant requested the court to instruct the jury tho a naked assertion by the defendant, with regard to the quality, character or condition of the property sold, although false and known to be false by the defendant, is not actionable unless the plaintiffs can show that the assertion so made is exclusively within the knowledge of the defendant, and that it was such a fact asserted as would naturally deceive any man of ordinary sagacity, intelligence and prudence, and that the plaintiffs were induced to purchase by such assertion, and that the defendant intended to deceive them.” The judge did so instruct the jury, excepting that he substituted the word “ peculiarly ” in ploc. of the word “ exclusively,” and the defendant excepted. Th change in the ruling requested was clearly right. The question was not whether any other person than the defendant could possibly know the fact respecting which the false assertion was made, but whether the plaintiffs knew it, or could have known it by the exercise of due care and prudence, and whether the defendant intentionally deceived them respecting it.

Exceptions overruled.