DOROTHY SPILLANE vs. HARRY COREY (and a companion case [Note 1]).

QUA, C.J. These cases were tried together in the District Court of Brockton and were reported to the Appellate Division in a single report which recites facts as such and not merely the evidence from which facts could be found. We treat the facts so stated as established. Leshefsky v. American Employers' Ins. Co. 293 Mass. 164, 165-166. See Detore v. Demers Bros. Inc. 312 Mass. 531, 534.

Dorothy Spillane, the plaintiff in the first action, is the wife of James E. Spillane, the defendant in the second action. The wife owned a sewing machine worth $179. Corey, the defendant in the first action and the plaintiff in the second, was a dealer in sewing machines. While the wife was visiting in Connecticut, the husband falsely represented to Corey that he was the sole owner of the machine and had a right to sell it, and finally he purported to sell it to Corey for $60. Corey paid the money to the husband and took the machine. Later the wife demanded the machine from Corey and offered to pay him the $60 that he had paid to her husband. Corey refused to return the machine unless she would give him $179, its value. The wife thereupon brought the first action against Corey in tort for conversion of the machine. Corey then brought the second action against the husband, in contract or tort, alleging in his first count breach of warranties of title, against encumbrances, and of right to sell, and in his second count deceit, with a claim in each count to recover special damages for attorney's fees which he was obliged to pay to defend the first action. Fifty dollars was a fair and reasonable price for the services of the attorney.

In the first action the trial judge found for the wife against Corey in the sum of $179. In the second action he found for Corey against the husband in the sum of $60. The Appellate Division dismissed the report in each action. In the first action no requests for rulings were made, nor

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was a report requested, as to any specified ruling of law. The appellant Corey has not argued this action before us. If the report in this action brought any question here (see Barton v. Cambridge, 318 Mass. 420, 423-424, and cases cited), the appellant has waived it. The disputed issues arise in the second action.

In the second action it would seem, on the facts stated, that the husband as seller of the machine expressly warranted his title and his right to convey the machine to Corey as the buyer. G. L. (Ter. Ed.) c. 106, Section 14. If he did not so expressly warrant, he gave implied warranties of substantially equal extent. G. L. (Ter. Ed.) c. 106, Section 15. These warranties were totally broken as soon as given. The husband had no title and no right to convey. Corey received no title whatever. The measure of Corey's damages was "the loss directly and naturally resulting, in the ordinary course of events, from such breach." G. L. (Ter. Ed.) c. 106, Section 58 (6). The first item in such damages is the value of the property, that is, $179, which Corey lost by not receiving a title to it as warranted. Grose v. Hennessey, 13 Allen 389. Handy v. Aldrich, 168 Mass. 34, 36. His loss cannot be measured by the $60 that he paid for the machine. He is entitled to the benefit of his bargain, which so far as appears was made without fraud on his part, even though he may have driven a hard trade.

The same rule would apply on the tort count, since in this Commonwealth the plaintiff is equally entitled to the benefit of his bargain in an action for deceit. Stiles v. White, 11 Met. 356, 358. Whiting v. Price, 172 Mass. 240, 242-243. McKinley v. Warren, 218 Mass. 310, 314. Goodwin v. Dick, 220 Mass. 556. Leader v. Kolligan, 262 Mass. 63, 65. Piper v. Childs, 290 Mass. 560, 561-562. Forman v. Hamilburg, 300 Mass. 138, 143. Ceder v. McCarthy, 320 Mass. 618, 619-620. Compare Kilgore v. Bruce, 166 Mass. 136, and McCarthy v. Brockton National Bank, 314 Mass. 318, where the circumstances were different, and the representations did not relate to the attributes of any property sold. The rule of the Restatement of Torts, Section 549 (a), is not the law in this Commonwealth, as the

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cases just cited sufficiently show. It follows that no question of election between counts, which seems to have bothered the Appellate Division, could arise. Moreover, G. L. (Ter. Ed.) c. 231, Section 7, Sixth, as appearing in St. 1939, c. 67, Section 1, provides that the plaintiff shall not be required to elect between tort and contract. Vieira v. Menino, 322 Mass. 165, 167. And besides, recovery for breach of warranty can be had in tort as well as in contract. Schuler v. Union News Co. 295 Mass. 350, 352-353.

And we think that Corey is also entitled to recover the reasonable counsel fees paid by him in defending the title which the husband had falsely warranted and represented to be good. This expense was an additional "loss directly and naturally resulting, in the ordinary course of events," from the false representations and breach of warranty. G. L. (Ter. Ed.) c. 106, Section 58 (6). It was "special damages" the right to recover which was preserved by Section 59. It falls within Section 549 (b) of the Restatement of Torts. See Peak v. Frost, 162 Mass. 298; Richmond v. Ames, 164 Mass. 467, 475; Leavitt v. Fiberloid Co. 196 Mass. 440, 445-450; Berry v. Ingalls, 199 Mass. 77, 80; Stiles v. Municipal Council of Lowell, 233 Mass. 174, 183-184; Malloy v. Carroll, 287 Mass. 376, 384-386, and cases cited; Pearl v. Wm. Filene's Sons Co. 317 Mass. 529, 533. Cases in which no question of special damages arose are not authorities to the contrary. Leavitt v. Fiberloid Co. 196 Mass. 440, 450.

In the first case the order of the Appellate Division dismissing the report is affirmed. In the second case the order of the Appellate Division is reversed, and judgment is to be entered for the plaintiff for $229 and interest from the date of the writ.

So ordered.