59 Mass. 23 - Tuckwell v. Lambert — 59 Mass. 23

Samuel S. Tuckwell vs. George Lambert. If a false and fraudulent representation, as to the condition or quality of an article, is made to one who is negotiating for the purchase thereof, as the agent of another, upon which representation a sale takes place, the principal may maintain an action thereon in his own name. The purchaser of a vessel, falsely and fraudulently represented by the seller as eighteen instead of twenty-eight years old, having sent her to sea before he had knowledge that such representation was false, and the vessel being afterwards condemned in a foreign port, it was held, that the purchaser was entitled to recover his actual damages, occasioned by sending the vessel to sea, not exceeding the value of the vessel. This was an action on the case for false and fraudulent representations, as to the age and condition of a vessel called the Perseverance, alleged to have been sold by the defendant to the plaintiff. The case was tried before Dewey, J., from whose report thereof, it appeared to be as follows: — It was in evidence, that one James R. Low applied to the defendant to purchase the vessel, and that the representations were made to him; that Low, in his own name, gave the defendant a memorandum in writing, agreeing to buy the vessel, and to pay him therefor a specified sum; that Low was the party beneficially interested in the vessel; that before any proposition was made to the defendant for the purchase of the vessel, it was agreed between the plaintiff and Low, that the former should have the legal title in the vessel, as security for advancing money or indorsing notes to pay therefor; that when the plaintiff should have been fully paid and discharged from all liabilities on this account, the vessel was to be transferred to Low; that Low told the defendant, at some time before the bill of sale was made, that he wanted to buy the vessel for Tuckwell, as he was to give him assistance in advancing money to pay for her; and that the bill of sale, which was not executed until after the representation relied upon as the cause of action, was made to the plaintiff. The defendant contended, that the plaintiff could not maintain this action, but that it should have been brought in the name of Low. The jury were instructed, that if Low was the purchaser of the vessel, the action could not be maintained; but that in deciding who the purchaser was, they would consider to whom the legal title was transferred by the defendant; if to Tuckwell, then, although Low might be beneficially interested, yet, if he acted at the request and with the assent of Tuckwell, in the negotiation for a sale, and in taldng the bill of sale in his name, and at no time in his own behalf, as the purchaser, Tuckwell might maintain the action ; the avails of a judgment, if recovered, to be received by him for his own benefit, so far as he had an interest, and as a trustee for Low for the residue. It was also in evidence, that the vessel was falsely and fraudulently represented to be eighteen years old, whereas she was in fact twenty-eight years old; that she was sent to sea under the belief, induced by such representation, that she was only eighteen years old; and that the fraudulent representation was not discovered until she had been condemned in a foreign port, or until some short period before that time, and long after she had departed on her voyage. The defendant requested the judge to instruct the jury, that the measure of damages, for such fraudulent representation as to the age of the vessel, was the difference in value merely between a vessel eighteen years old, and one twenty-eight years old. The jury were instructed, upon this point, that if the vessel was at home or elsewhere in the hands of the plaintiff for future use, the rule suggested might be adopted; but, if the plaintiff had sent her to sea, under the belief of such false representation, and she had been wholly lost, the plaintiff might recover to the amount of her whole value, if he had sustained damage to that amount; if, on the other hand, he had sent the vessel to sea, after he knew of the false and fraudulent representation of the defendant, he could only recover the difference in value between a vessel such as she was represented to be and such as she actually was. The jury returned a verdict for the plaintiff, which is to be set aside and a new trial granted, if the instructions above stated were not sufficiently favorable to the defendant. W. Brigham, for the defendant, argued, 1st, that the plaintiff could not maintain this action, citing Morgan v. Bliss, 2 Mass. 111; Salem India Rubber Co. v. Adams, 23 Pick. 256; and, 2d, that the measure of damages must be limited to the state of things at the time the deceit was practised, or the contract made, citing Smith v. Griffith, 3 Hill, 333; Van Epps v. Harrison, 5 Hill, 63; Matthews v. Bliss, 22 Pick. 48; Sherwood v. Sutton, 5 Mason, 1; Medbury v. Watson, 6 Met. 246. 0. B. Low, for the plaintiff. — By the Court. (majority) By the Court. In the opinion of the court, the directions of the judge at the trial were right. 1. As to the first point, the representation made to Low, who was acting by agreement for the plaintiff, was, in effect, a representation to the plaintiff; it was made with reference to a sale, and to induce a sale, and therefore enures to the purchaser. 2. Under the peculiar circumstances of the case, the direction in regard to damages was right; the jury were limited to the actual damages to the purchaser, caused by the false representation, not exceeding the value of the vessel, and occasioned by sending her to sea before he knew of the falsity of the representation. , Judgment on the verdict.