Townsend v. Niles

Sheldon, J. These cross-actions grew out of the same occurrences and were tried together. Exceptions were alleged in each. "It will be convenient however to consider them separately. In the first named action Townsend seeks to recover damages for a fraudulent representation alleged to have been made to [530] him by Niles in the sale of a share in a provision business which had been carried on by Niles and one Onthank in Boston. The fraudulent representation alleged in the declaration and found to have been made was that Niles and Onthank were doing a business of #150,000 annually. The questions now presented arise upon the refusal of the judge to rule as requested by the defendant that upon all the evidence the plaintiff was not entitled to recover, and that if the jury should find that the defendant told the plaintiff that the firm was doing a business of #150,000 a year and also found that the defendant gave the plaintiff full opportunity to observe for himself what was being done, the plaintiff could not recover. 1. The defendant claims that the real inducement by which the plaintiff was persuaded to make his purchase was not the fraudulent representation, but the assurance that a. corporation would be formed and that the defendent and Onthank would assist in forming it and in the corporation affairs, and that this assurance was merely a promise and not the false statement of an existing fact. Some of the plaintiff’s testimony undoubtedly tended to support this contention as to what was the real inducement upon which the plaintiff acted, but upon the whole evidence we think it plain that the question was for the jury. Nothing said in the charge was excepted to, and it is not reported. We must therefore take it that the question was submitted to the jury with full and correct instructions. 2. The defendant contends also that the case here presented is like that of one purchasing goods which he is given full opportunity to examine and of which the condition is obvious upon examination. Salem India Rubber Co. v. Adams, 23 Pick. 256. Manning v. Albee, 11 Allen, 520, 522. Brown v. Leach, 107 Mass. 364. Burns v. Lane, 138 Mass. 350. Deming v. Darling, 148 Mass. 504, 505. But here again the question was for the jury. We cannot say as matter of law that the fullest examination of a stall in a market or of other premises in which the business of dealing in provisions at wholesale or retail is carried on would make 'manifest the truth or falsity of a representation as to the amount of business which is being done there. And under the circumstances of this case the same principle applies to the advice of third persons or to the examination of books so [531] far as this was or might have been made. See Lewis v. Jewell, 151 Mass. 345, 347; Holst v. Stewart, 161 Mass. 516; Whiting v. Price, 172 Mass. 240; Arnold v. Teel, 182 Mass. 1; Long v. Athol, 196 Mass. 497, 504; Rollins v. Quimby, 200 Mass. 162; Thomson v. Pentecost, 206 Mass. 505. 3. It cannot be said that the evidence taken together discloses such a failure on the part of the plaintiff to use reasonable care for his own protection as to preclude his recovery under the rule of Poland v. Brownell, 131 Mass. 138. The doctrine of that case is not to be extended. “ It relates merely to seller’s talk.” Light v. Jacobs, 183 Mass. 206, 210. In the second case, an action upon promissory notes given by Townsend to Niles, the only defense set up was the same deceit which was declared upon and recovered for in the other action. In that action Townsend recovered a verdict for $4,500. The damage done to him is wholly made good by that recovery; he is placed in the same position as if the representation had been true; and he can have nothing more recouped from his note on account of a wrong for which he thus has been already fully compensated. It follows that, even if-there were any error in the rulings or in the admission of evidence in this action, he would not be aggrieved by it, and so would have now no right of exception. It does not appear and has not been suggested that the effect of this evidence may have been to reduce the amount of the verdict in the other case, and so have operated injuriously to Townsend. If he had apprehended this, his remedy would have been by alleging exceptions in that case, and then the question would have been open. He has not chosen to do this, apparently being satisfied with the amount which was awarded to him. He cannot have a double relief for the one wrong which was done to him. In each case the order must be Exceptions overruled.