Kerr v. Shurtleff

Loring, J. This is an action of tort in which the plaintiff alleges that, to induce him to become a student in the College of Physicians and Surgeons, the defendant* falsely represented to him in the summer of 1908 that the college had authority to grant the degree of Dentaria Medicina Doctor (D.M.D.) and that acting on that representation the plaintiff enrolled himself as a student, pursued a course of study for three years and passed all the examinations given him by his instructors, but failed to get the degree of D.M.D. by reason of the fact that the defendant did not have authority to grant it. The defendant rested on the plaintiff’s evidence. The jury found for the plaintiff, and the case comes before us on exceptions taken by the defendant† — 170 — In disposing of these exceptions we will follow, in the main, the defendant’s brief. 1. The defendant has contended that, on the plaintiff’s evidence, what was said by him (the defendant) was a promise and not a representation of fact. The plaintiff testified on his direct examination that the defendant said to him, “Well, we can fix you up nicely in three years, make you a D.M.D.” That was in effect a statement that the college had authority to grant the degree of D.M.D. It is true that on cross-examination the plaintiff testified to a promise that the college would make him a D.M.D. and did not repeat the statement made by him on direct that we “can . . . make you a D.M.D.” In this state of the evidence it was for the jury to decide whether the statement testified to on direct examination was made. Tierney v. Boston Elevated Railway, 216 Mass. 283. If it was made, a misrepresentation of fact was made by the defendant. 2. The next contention made by the defendant is that under the decision in Dawe v. Morris, 149 Mass. 188, the representation was immaterial. Dawe v. Morris was a case where to induce the plaintiff to make a contract with a railroad company to build a section of its road the defendant falsely represented to him that he and another person had bought enough rails at a certain price to build it, and that if the plaintiff entered into a contract with the railroad company they would sell] the rails to him at the same price. It was held that this was a representation as to a matter not material to the contract there in question. We are of opinion that the case at bar does not come within that decision. The representation that the college could grant a degree of D.M.D., made to induce the plaintiff to take a three years’ course in the college, was a material representation. 3. The presiding judge in his charge told the jury: “If you find . . . that the defendant promised the plaintiff that . . . the college would give him a degree at the end of a three years’ course of study, and he did not get his degree, his degree was not given to him, then the plaintiff is entitled to recover, although the college had authority to grant it to him; if you are satisfied that there was an absolute promise on the part of the defendant to grant that degree, and you are satisfied that at the time the promise was made the defendant had no intention that that — 171 — promise should be carried out; that he had made the promise wrongfully and for the purpose of deceiving this plaintiff.” We find nothing in the evidence stated in the bill of exceptions calling for an instruction on this point. For that reason the exception to this part of the charge must be sustained. Under these circumstances we do not find it necessary to consider whether the charge would have been correct if there had been evidence on which it could have been given. We do not intimate that it would have been correct. 4. The defendant contends that the plaintiff must fail because he did not get the necessary consent of the faculty to entitle him to a degree.* But on the evidence the jury could have found that the plaintiff passed all his examinations satisfactorily. If under these circumstances a degree was not conferred upon him it was not his fault. 5. We are of opinion that the college did not have authority to grant the degree of D.M.D. By St. 1883, c. 268 (now R. L. c. 125, § 10), it is provided that “No corporation organized for medical purposes under the provisions of chapter one hundred and fifteen of the Public Statues shall confer degrees, or issue diplomas or certificates conferring or purporting to confer degrees, unless specially authorized by the Legislature so to do.” By an earlier act passéd at the same session of the Legislature, the college here in question was authorized “to confer the degree of Doctor of Medicine.” St. 1883, c. 153, § 1. The prohibition is against conferring any degrees unless specially authorized. The special authority given is limited to conferring a specified degree, namely, the degree of Doctor of Medicine. Under these circumstances the college did not have authority to confer the degree of D.M.D. 6. The jury could have found that the representation of fact made by the defendant was made as of his own knowledge without his knowing it to be true or false. That made out a case of deceit. Huntress v. Blodgett, 206 Mass. 318, 324. Adams v. Col — 172 — lins, 196 Mass. 422, 428. Chatham Furnace Co. v. Moffatt, 147 Mass. 403. See also Montgomery Door & Sash Co. v. Atlantic Lumber Co. 206 Mass. 144, 154. The defendant took an exception to that part of the judge’s charge in which the judge so instructed the jury. He seeks now to support that exception on the ground that no allegation to that effect was inserted in the declaration. But the exception taken to this part of the charge did not refer to the state of the pleadings. Under these circumstances it is not now open to the defendant to support the ruling on that ground. See Noyes v. Caldwell, 216 Mass. 525. 7. Against the defendant’s exception Dr. Robertson was allowed to testify that in 1910 he asked the defendant whether the college had a right to grant the degree of D.M.D., and the defendant told him that “he must go slow on that, but if they [meaning the students] could pass the State board first he may be able to grant them a degree;” and Dr. Gilbert, under the defendant’s exception, was allowed to testify that in May or June of 1909, the defendant told him that he did not know whether the college had the right to grant the degree of D.M.D. or not. This evidence was plainly admissible on the issue whether the defendant made the statement as of his own knowledge without knowing whether it was true or not. The defendant also took an exception to the testimony given by Dr. Boynton, to the effect that the defendant in 1909 had told him that the college had a right to grant the degree because of their having the right to grant the degree of Doctor of Medicine; that, having that right, they had the right to grant any degree in medicine. This evidence, so far as it was material, helped the defendant and certainly did not harm him. All these exceptions to evidence must be overruled. 8. Although the defendant has contended to the contrary, on the evidence the jury were warranted in finding that the representation which the jury must have found he made to the plaintiff, was made to induce the plaintiff to act upon it and that the plaintiff did act and did rely upon it. 9. We are of opinion that the exception to the rule of damages laid down by the judge in his charge to the jury, was well taken. The judge told the jury that the plaintiff “is entitled to have considered, as bearing upon the question of damages, what he — 173 — has paid out as tuition.” That was wrong. The rule of damages is the difference in value between that which the plaintiff in fact got and that which he would have got if the representation made had been true. Thomson v. Pentecost, 206 Mass. 505; S. C. 210 Mass. 223. Morse v. Hutchins, 102 Mass. 439. See also Lee v. Tarplin, 183 Mass. 52; Whiting v. Price, 172 Mass. 240; and Nash v. Minnesota Title Ins. & Trust Co. 163 Mass. 574, 581. What the plaintiff got was an education in dentistry; what he would have got if the representation had been true was an education in dentistry and a degree. The measure of damages, therefore, in the case at bar, is what it will cost the plaintiff in time and money to get a degree of D.M.D., not what he has paid out in getting the education in dentistry without the degree. The exception to this portion of the charge must be sustained. 10. As the case is to go back for a new trial, it ought to be pointed out that the judge should not have given the third, fourth and fifth rulings, which were given at the request of the defendant.* If the jury found that the defendant made the statement testified to by the plaintiff on his direct examination, it was a statement of fact although it involved a question of law. If that statement was made by the defendant, this was not a case where the defendant expressed his opinion as to the legal effect of facts there stated or otherwise known to the parties, but a statement that as matter of fact the college had the right to grant the degree of D.M.D. The distinction is established by the decisions made in Burns v. Lane, 138 Mass. 350; Windram v. French, 151 Mass. 547; Burns v. Dockray, 156 Mass. 135. And see Jessel, M. R., in Eaglesfield v. Londonderry, 4 Ch. D. 693,702, 703. To avoid misapprehension it is proper to add that it was stated in Burns v. Dockray, 156 Mass. 135, 138, that it is still an open — 174 — question here whether an action for a false representation of law will lie. H. Bergson, for the defendant. J. L. Burns, for the plaintiff. Exceptions sustained. Footnotes [*] The general agent of the board of trustees of the college, [†] The case was tried before Crosby, J. [*] The plaintiff testified that he knew that, before he could get the degree of D.M.D., it was necessary that three fourths of the faculty and a majority of the board of trustees should consent thereto. It appeared that, at the meeting of the faculty at which the plaintiff’s application for a degree was considered, less than three fourths of the faculty were present. [*] "3rd. That the statement made by the defendant as to the authority of the College of Physicians and Surgeons to grant degrees of D.M.D. is not a statement of a past or present fact. “4th. The right of the College of Physicians and Surgeons to grant degrees of D.M.D. is a question of law and the plaintiff cannot recover for any misstatement made by the defendant as to the legal right of the College to grant said degree. "5th. A misstatement of the law cannot form the basis of any action for deceit.”