Silverman v. Rothfarb

By the court. This is an action of contract by the payees against the makers of a promissory note for $300 dated June 15,1922, payable the next day, and given as part of a deposit for the purchase of real estate. The main defence is that the defendants were induced to agree to buy the real estate and consequently to sign the note by reason of the fraud and misrepresentations made to them by the plaintiffs. There was ample evidence to prove such fraud and misrepresentations, as the inducement to the signing and delivery of the note. It need not be recited. The jury might well have found on the evidence that the plaintiffs intentionally made false statements of material facts as distinguished from matters of opinion and from dealers’ talk, which were believed and relied on by the defendants to their damage. If these were found to be the facts a defence to the note was established. Kilgore v. Bruce, 166 Mass. 136. Bates v. Cashman, 230 Mass. 167, 168. The testimony of one of the defendants, that he said to the plaintiffs that he wanted to look over the property but that one of the plaintiffs “ insisted that the agreement must be signed then and there or there would be no sale,” was competent as a part of the conversation in which the specific misrepresentations were made. The remark of the trial judge in admitting this testimony, to the effect that the urgency of the sellers in trying to push the bargain to completion without giving the buyers a chance to look at the property was a circumstance entitled to consideration, was not open to exception. This evidence also was competent on the issue, whether the defendants relied on the misrepresentations. There was no harmful error in the exclusion of the questions to the broker. They were irrelevant in substance, and improper in form. Moreover no offer of proof was made as to the expected answers. The requests for instructions which werce denied and the exceptions to the charge have not been argued and may be [459] treated as waived notwithstanding the statement of the plaintiffs that all exceptions are relied on. Commonwealth v. Dyer, 243 Mass. 472, 508. Commissioner of Banks v. Cosmopolitan Trust Co., ante, 334. Careful examination of the entire record reveals no reversible error. Exceptions overruled.