MICHAEL MABARDY & others vs. PATRICK MCHUGH & another

TORT for deceit in the sale of land. Writ in the Superior Court for the county of Middlesex dated January 18, 1906.

The case was tried before Stevens, J. The facts are stated in the opinion. The jury found for the defendants; and the plaintiffs alleged exceptions.

The case was submitted on briefs.

J. T. Connolly & J. L. Sheehan, for the plaintiffs.

J. H. Vahey, P. Mansfield & T. F. Vahey, for the defendants.

RUGG, J. This is an action of tort sounding in deceit. There was evidence tending to show that the plaintiffs went upon a certain irregularly shaped tract of land (for false representations inducing the purchase of which this action was brought) with one of the defendants, who pointed out the true boundaries and fraudulently stated that the tract contained sixty-five acres, when in fact it contained forty and three fourths acres. Upon this aspect of the evidence, the trial judge instructed the jury

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that "if the plaintiffs . . . were taken over the farm by the defendants . . . or [and] were shown the bounds so that the plaintiffs knew where the farm was and what was comprised within the bounds, it would not be of any consequence that representations may have been made by the defendant in relation to the acreage." The evidence being conflicting as to whether the boundaries were shown, the jury were further instructed that if the defendant, who talked with the plaintiffs, "knew that there were not sixty-five or nearly sixty-five acres, or if he did not know anything about it and stated it as a fact within his personal knowledge, then it would be a false representation for which he would be liable provided" the other elements essential to a recovery were found to exist.

The correctness of the first of these instructions is challenged. It is in exact accordance with the law as laid down in Gordon v. Parmelee, 2 Allen 212, and Mooney v. Miller, 102 Mass. 217. The facts in the case at bar are similar in all material respects to these cases. An attempt is made to distinguish them on the ground that the present plaintiffs were Syrians, ignorant of our language, and that hence a trust relation existed between them and the defendant. But whatever else may be said of this contention, it fails because they were accompanied by two of their own countrymen, who were thoroughly familiar with our language and acted as interpreters for them. In effect, the contention of the plaintiffs amounts to a request to overrule these two cases. They have been cited with approval in Roberts v. French, 153 Mass. 60, and as supporting authorities,. without criticism, in other opinions. The court, however, has refused to apply the rule of those decisions to other facts' closely analogous. See Lewis v. Jewell, 151 Mass. 345 ; Holst v.. Stewart, 161 Mass. 516 ; Whiting v. Price, 172 Mass. 24 ; Kilgore v. Bruce, 166 Mass. 136. This court in recent years, by pointed language and by conclusions reached, has indicated a plain disposition not to extend legal immunity for the falsehood of vendors in the course of negotiations for sales beyond the bounds already established. Dawe v. Morris, 149 Mass. 188, 192. Way v. Ryther, 165 Mass. 226. Kilgore v. Brune,. 166 Mass. 136. Andrews v. Jackson, 168 Mass. 266, 268. Whiting v. Price, 172 Mass. 240. Boles v. Merrill, 173 Mass. 491.

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Arnold v. Teel, 182 Mass. 1, 4. Adams v. Collins, 196 Mass. 422. Long v. Athol, 196 Mass. 497, 504. Gurney v. Tenney, 197 Mass. 457, Lyons Burial Vault Co. v. Taylor, 198 Mass. 63, Rollins v. Quinby, 200 Mass. 162.

This judicial attitude perhaps reflects an increasingly pervasive moral sense in some of the common transactions of trade. While the science of jurisprudence is not, and under present conditions cannot be, coextensive with the domain of morality, nor generally undertake to differentiate between motives which mark acts as good or bad, yet it is true, as was said by Mr. Justice Brett, in Robinson v. Mollett, L. R. 7 H. L. 802, 817, that " The courts have applied to the mercantile business brought before them what have been called legal principles, which have almost always been the fundamental ethical rules of right and wrong." This is only a concrete expression of the broader generalization that law is the manifestation of the conscience of the Commonwealth.

In many other jurisdictions the rule of Gordon v. Parmelee and Mooney v. Miller has not been followed and false representations as to area of land, even though true boundaries were pointed out, have been held actionable. McGhee v. Bell, 170 Mo. 121, 135, 150. May v. Loomis, 140 N. C. 350. Boddy v. Henry, 113 Iowa, 462, 465 ; S. C. 126 Iowa, 31. Antle v. Sexton, 137 Ill. 410. Estes v. Odom, 91 Ga. 600, 609. Lovejoy v. Isbell, 73 Conn. 368, 375. Cawston v. Sturgis, 29 Ore. 331. Starkweather v. Benjamin, 32 Mich. 305. Paine v. Upton, 87 N. Y. 327. Mitchell v. Zimmerman, 4 Texas, 75. Walling v. Kinnard, 10 Texas, 508. Speed v. Hollingsworth, 54 Kans. 436. See also Fairchild v. McMahon, 139 N. Y. 290 ; Schumaker v. Mather,133 N. Y. 590.

Other cases apparently opposed to the Massachusetts rule, on examination prove to go no further than to decide that misrepresentations as to area, when there is no evidence that boundaries were shown, constitute deceit. Griswold v. Gebbie, 126 Penn. St. 353. Cabot v. Christie, 42 Vt. 121. Coon v. Atwell, 46. N. H. 510. Ledbetter v. Davis, 121 Ind. 119. Perkins Manuf. Co. v. Williams, 98 Ga. 388. Sears v. Stinson, 3 Wash. 615. Hill v. Brower, 76 N. C. 124. Stearns v. Kennedy, 94 Minn. 439. This is the substance of the latter part of the

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instruction given in the Superior Court, and is the law of this Commonwealth.

The rule of Mooney v. Miller seemingly has been approved or followed in Lynch v. Mercantile Trust Co. 18 Fed. Rep. 486; Crown v. Carriger, 66 Ala. 590; and Mires v. Summerville, 85 Mo. App. 183, although the last case has been overruled in Judd v. Walker, 114 Mo. App. 128, 135.

If the point were now presented for the first time, it is possible that we might be convinced by the argument of the plaintiffs and the great weight of persuasive authority in its support, especially in view of Lewis v. Jewell, 151 Mass. 345. But there is something to be said in support of the two earlier decisions now questioned. A purchase and a sale of real estate is a transaction of importance and cannot be treated as entered into lightly. People must use their own faculties for their protection and information, and cannot assume that the law will relieve them from the natural effects of their heedlessness or take better care of their interests than they themselves do. Thrift, foresight and self-reliance would be undermined if it was the policy of the law to attempt to afford relief for mere want of sagacity. It is an ancient and widely, if not universally, accepted principle of the law of deceit that, where representations are made respecting a subject as to which the complaining party has at hand reasonably available means for ascertaining the truth and the matter is open to inspection, if, without being fraudulently diverted therefrom, he does not take advantage of this opportunity, he cannot be heard to impeach the transaction on the ground of the falsehoods of the other party. Salem India Rubber Co. v. Adams, 23 Pick. 256, 265. Slaughter v. Gerson, 13 Wall. 379, 383. Long v. Warren, 68 N. Y. 426, 432. Baily v. Merrell, 3 Bulstr. 94. This rule in its general statement applies to such a case as that before us. It is easy for one disappointed in the fruits of a trade to imagine, and perhaps persuade himself, that the cause of his loss is the deceit of the other party, rather than his own want of judgment.

It is highly desirable that laws for conduct in ordinary affairs, in themselves easy of comprehension and memory, when once established, should remain fast. The doctrine of stare decisis is as salutary as it is well recognized. Rogers v. Goodwin, 2 Mass. 475,

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478. Holmes v. Runt, 122 Mass. 505, 516. Smith v. Worcester, 182 Mass. 232. Commonwealth v. Walsh, 196 Mass. 369.Spicer v. Spicer, Cro. Jac. 527. Pollock v. Farmers' Loan Trust Co. 157 U. S. 429, 574, 638. Goodtitle v. Kibbe, 9 How. 471, 478. Minnesota Co. v. National Co. 8 Wall. 332. While perhaps it is more important as to far-reaching juridical principles that the court should be right, in the light of higher civilization, later and more careful examination of authorities, wider and more thorough discussion and more mature reflection upon the policy of the law, than merely in harmony with previous decisions (Barden v. Northern Pacific Railroad, 154 U. S. 288, 322), it nevertheless is vital that there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be encouraged to seek reexamination of determined principles and speculate on a fluctuation of the law with every change in the expounders of it. As to many matters of frequent occurrence, the establishment of some certain guide is of more significance than the precise form of the rule. It is likely that no positive rule of law can be laid down that will not at some time impinge with great apparent severity upon a morally innocent person. The law of gravitation acts indifferently upon the just and the unjust. A renewed declaration of law that is already in force, supported by sound reason and not plainly wrong, in the long run probably works out substantial justice, although it may seem harsh in its application to some particular case. These considerations are regarded as so weighty by the House of Lords that it cannot overrule any of its own decisions. London Tramways Co. v. London County Council, [1898] A. C. 875.

The conclusion is that we do not overrule the decisions whose soundness has been debated at the bar, although we do not extend their scope, but confine them strictly to their precise point, namely, that where the. seller of real estate shows upon the face of the earth its true boundaries to the purchaser and does not fraudulently dissuade him from making full examination and measurement and the estate is not so extensive or of such character as to be reasonably incapable of inspection and estimate, and there is no relation of trust between the parties, the purchaser has no remedy for a misrepresentation as to the area alone.

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The instruction as to the difference between representation and expression of opinion [Note p153] was adequate and adapted to the testimony.

The charge is not reported in full. No requests for rulings were presented, and the only exceptions relate to the statement of the rule of Gordon v. Parmelee and Mooney v. Miller. It does not appear, therefore, that full instructions were not given as to the effect of fraudulent dissuasion by the defendants (of which there was some evidence) from a full examination of the farm by the plaintiffs.

Exceptions overruled.