Lefevre v. Chamberlain , 228 Mass. 294 ( 1917 )

Braley, J.

.The defendants not having appealed from the interlocutory decree overruling their exceptions and confirming the master’s report, the only question on the appeal from the final decree is whether on the record the bill can be maintained.

From the very full findings of the master it is plain, that in the exchange between the parties of the lands in question the plaintiffs, through the false and material representations of the defendant Charles Chamberlain as to the area of the farm as shown by the boundaries pointed out to them by him, which they believed to be true, were induced to part with their own property of greater value. Worcester v. Cook, 220 Mass. 539. After deeds had been passed and change of occupancy effected, the plaintiffs discovered the fraud, and thereupon, instead of affirming the trade and suing at law for damages, they resorted to equity for rescission and appropriate relief. Ginn v. Almy, 212 Mass. 486, 493. Winston v. Pittsfield, 221 Mass. 356, 358.

Nor was it necessary, as the defendants contend, that before bringing suit the plaintiffs should offer to return the property they had received, which included not only the farm, but also some live stock, poultry, farming tools, carriages and harnesses. Ginn v. Almy, 212 Mass. 486. The filing of the bill was sufficient notice of the election, and, if full restoration could not be made by either party;, compensation could be decreed. Arnold v. Maxwell, 223 Mass. 47. It is therefore of no consequence, that at the time the offer to rescind as alleged in the bill was made, the title was in one Chaliux to whom before they knew of the deception the plaintiffs had conveyed. The title having been held by them under a re-conveyance from Chaliux when the bill was filed, and they having offered in the prayer for relief to make such restitution as might be ordered, the only defence urged is untenable.

But it was stated by the parties at the argument, that since the appeal the buildings on the premises conveyed by the plaintiffs have been partially destroyed by fire, and, if the defendants recótivey as ordered by the decree, the plaintiffs would not be re-vested with their former estate. It is settled that under such circumstances and where strict rescission, with specific performance is no longer possible, the bill can ■ be retained for ■ the assessment of damages. American Stay Co. v. Delaney, 211 Mass. 229, 233. Arnold v. Maxwell, ubi supra.

The master having found that the shortage in area consisted of a tract of wood and timber land which he valued at $769.50, the counsel for the plaintiffs stated without any dissent being expressed by the counsel for the defendants, that, if entitled to prevail, they were willing to accept this amount in full satisfaction, and waive all rights to specific relief. The measure of recovery is thus brought within the rule, that in an action for fraud and deceit damages are measured by the difference between the actual value received, and what that value would have been if the representations had been true. Thomson v. Pentecost, 210 Mass. 223.

The appeal vacated the decree as to the defendants, and under St. 1913, c. 716, § 2, this court, having before it “all the facts necessary for determining the question in dispute,” can in conformity therewith direct the entry of a final decree. It follows that the decree appealed from must be amended by striking out after the words "it is ordered, adjudged and decreed,” the remaining terms to the words, “and further shall pay to the defendants their costs in the sum of thirty-two dollars and twenty-eight cents,” and by inserting in lieu thereof the words, “that the plaintiffs recover of the defendants the sum of seven hundred sixty-nine and fifty one hundredths dollars as damages,” and by adding to the closing sentence, “and execution for said damages and costs is to issue.” As thus amended the decree is affirmed with costs of the appeal.

Ordered accordingly.