Vouros v. Pierce , 226 Mass. 175 ( 1917 )

Braley, J.

The jury could find that the defendant represented that he had a restaurant for sale, the weekly gross receipts of which were from $25 to $40 weekly, leaving a net income of $10, and that the plaintiffs who had been employed in restaurants 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 the defendant’s counsel. The representations were material. Gurney v. Tenney, 197 Mass. 457. Thomson v. Pentecost, 206 Mass. 505. 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 the assignee of the outstanding mortgage on the chattels described in the bill of sale given to the plaintiffs, he transferred all the property for which they bargained.

It is not easy to reconcile this defence 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 that, “he had a restaurant for” $325,where they could make a net profit of $10 a week, and appointed a time to consummate the sale. Douglas v. Stetson, 159 Mass. 428, 430. The jury further could 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 prosperous business enterprise, or only a lot of furnishings and utensils held under a defeasible title was a question of fact for the jury. Kilgore v. Bruce, 166 Mass. 136. Rollins v. Quimby, 200 Mass. 162, 164; S. C. 206 Mass. 391, 394. And the first request that upon all the evidence the jury must find for the defendant was denied rightly.

While the presiding judge said that he did not give the sixth request, it is clear that this request as well as the remaining requests except the fourth, fifth and tenth, in so far as applicable, are covered by the instructions which were sufficiently favorable to the defendant, and to which no exceptions were taken.

The tenth request, that if there was a breach of the covenant against incumbrances the plaintiffs can recover only nominal damages unless they have been disturbed in possession by the incumbrancer or have been put to expense to remove the incumbrance, and the fourth and fifth requests, that the terms of sale as contained in the bill of sale could not be varied by parol evidence, and that the good will of the business did not pass under the bill of sale, were inappropriate. The action is not for breach of the covenant of title to the chattels or of the covenant against incumbrances, but, as we have said, it is for damages for fraud underlying the entire transaction where the measure of recovery is the difference between the actual value of what the plaintiffs received and what that value would have been if the defendant’s representations had been true. Thomson v. Pentecost, 210 Mass. 223.

We have not overlooked the declaration. But, if there is a partial variance between the allegations and the proof, this question, not having been raised at the trial, is not open on the record. Oulighan v. Butler, 189 Mass. 287, 289.

Exceptions overruled.