Campbell, J. This action was brought to recover damages arising from alleged misrepresentations made by Starkweather to Benjamin concerning the quantity of land in a parcel purchased from Starkweather and others, for whom he acted, and which was bought by the acre.
The defence rested mainly on the ground that the purchaser saw the land, and was as able to judge of its size as Starkweather.
We do not think the doctrine that where both parties have equal means of judging there is no fraud applies to such a case. The maxim is equally valid, that one who dissuades another from inquiry and deceives him to his prejudice is responsible. It cannot be generally true that persons can judge of the contents of a parcel of land by the eye. When any approach to accuracy is needed, there must be measurement. When a positive assurance of the area of a parcel of land is made by the vendor to the vendee with the design of making the vendee believe it, that assurance is very material, and equivalent to an assurance of measurement. In this case the testimony goes very far, and shows that the assertions and representations, which the jury must have found to be true, were of such a nature that if believed, as they were, a re-survey must have been an idle ceremony. They were calculated to deceive, and as the jury have found, they did deceive Benjamin, and he had a clear right of action for the fraud.
[Omitting remainder of opinion.]
Judgment affirmed.[[365]]
MABARDY v. McHUGH
Supreme Judicial Court, Massachusetts, May 21, 1909.
Reported in 202 Massachusetts Reports, 148.
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.
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 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. 240; 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....