Manning v. Albee , 93 Mass. 520 ( 1866 )

Gray, J.

This court has repeatedly recognized and acted upon the rule of the common law, by which the mere statements of a vendor, either of real or personal property, not being in the form of a warranty, as to its value, or the price which he has given or been offered for it, are assumed to be so commonly made by those holding property for sale, in order to enhance its price, that any purchaser who confides in them is considered as too careless of his own interests to be entitled to relief, even if the statements are false and intended to deceive. Medbury v. Watson, 6 Met. 259, 260. Brown v. Castles, 11 Cush. 350. Veasey v. Doton, 3 Allen, 381. Hemmer v. Cooper, 8 Allen, 334. But the utmost limit of this rule has been reached in applying it to statements of the price paid by the- person mak-. ing them; and in the leading case in this commonwealth of Medbury v. Watson, an action was maintained for false and fraudulent representations as to the price paid by a third person for the property in question. See also Sandford v. Handy, 23 Wend. 269.

In the case now before us, the plaintiff offered to show that he was induced to part with his goods by the false and fraudulent representations of French and the defendant, not only as to the value of the bonds offered by French to secure the note given by him for the goods, but also as to the sales of such bonds in the market at a certain price, appearing by a published list of sales of stocks and securities, which they exhibited to him, to have actually taken place. This last representation was one which the plaintiff is not shown to have had equal means of knowing the truth or untruth of, and on which he might, without imputation of negligence, rely, and upon discovering it to be false and fraudulent, maintain an action.

The demand of payment of the note after the bringing of this action did not abate or defeat it. The plaintiff was not obliged to surrender the note and bonds before beginning a suit for the fraudulent representations ; for the bill of exceptions states that French, from whom he received them, could not be found, so that they could be tendered to him; and the defendant was in no event entitled to them. Stevens v. Austin, 1 Met. 558. Even in a similar action against French, it would be sufficient to file them at any time before final judgment. Thurston v. Blanchard, 22 Pick. 18. Bridge v. Batchelder, 9 Allen, 394.

Exceptions sustained.