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eBook details

• Title: Lishner v. Bleich
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 12, 1946
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 56 KB

Description

DOLAN, Justice. This is an action to recover a deposit of $2,500 made by the plaintiff pursuant to a written agreement for the purchase of certain real estate by the plaintiff from the defendant. The amended declaration is in two counts. In the first count the plaintiff alleges that he was induced to enter into the agreement relying on the representation of the defendant that he was the owner of and had title to the real estate involved; that subsequently learning that this representation was false in that the defendant did not have title to said real estate, he (the plaintiff) immediately rescinded the agreement and demanded of the defendant that he return the deposit; and that the defendant refused to do so. The second count is for money had and received. In response to the defendant's motion, the plaintiff specified as to the second count the false representation made by the defendant as to ownership of the property and that this false representation caused the plaintiff 'to doubt other representations made by the defendant to the plaintiff with respect to the property in question.' At the pre-trial hearing (Rule 57A of the Superior Court 1932) it was stipulated by the parties that there be expunged from the plaintiff's specifications the reference to alleged misrepresentations other than that of ownership of the real estate, that the pleadings were complete, and that there were to be no further amendments; and it was so ordered. The case was tried to a jury, and in the course of the trial evidence offered by the plaintiff tending to show misrepresentations of the defendant concerning the physical condition of the premises and the rentals of apartments therein was excluded by the Judge, subject to the plaintiff's exceptions. At the close of the evidence the motion of the defendant for a directed verdict in his favor was allowed by the Judge, and the plaintiff excepted thereto. The only issue presented by the pleadings, specifications and pretrial order was whether the defendant's misrepresentation of ownership of the real estate involved warranted rescission of the agreement and recovery of the deposit by the plaintiff. The proffered evidence concerning misrepresentations as to the condition and rentals of the property was properly excluded. Specifications must be read with the declaration, and the proof must conform to the specifications. Shea v. Crompton & Knowles Loom Works, 305 Mass. 327, 329, 25 N.E.2d 725, and cases cited. We treat the statement in the bill of exceptions, to the effect that the specifications filed by the plaintiff included other misrepresentations than that of ownership, to have been set forth in the bill by error. We have already pointed out that alleged misrepresentations set out in the specifications other than that of ownership were specifically expunged in the pre-trial order, and that it was therein ordered that no further amendments were to be allowed to the pleadings.

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