This is an action for deceit brought by a former tenant of the defendant to recover damages because of alleged fraud of the defendant which resulted in the plaintiff's vacating his tenement. A demurrer, based upon the ground that the matters alleged in the plaintiff's declaration were insufficient in law to enable the plaintiff to maintain the action, was sustained, and the plaintiff appealed.
The declaration alleged that the plaintiff was a tenant of the defendant on January 30, 1948, when a written notice to quit was served upon him which stated that the defendant desired to have the tenement "for family occupancy," which under the housing and rent act of 1947, U.S.C. (1946 ed.) Sup. I, Title 50, Appendix, § 1899 (a), was adequate cause for the defendant seeking to secure possession of the premises; that the defendant knew that this statement that he desired the premises for this purpose was false and was made with intent that the plaintiff would act
To recover for that intentional fraudulent conduct of which the plaintiff complains, he must allege and prove that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage. Alpine v. Friend Bros. Inc. 244 Mass. 164. Robichaud v. Owens-Illinois Glass Co. 313 Mass. 583, 585. McCarthy v. Brockton National Bank, 314 Mass. 318, 326.
The misrepresentation of the defendant's proposed use of the plaintiff's tenement was a misrepresentation of a material fact, Commonwealth v. Althause, 207 Mass. 32, 47-48; Dubois v. Atlantic Corp. 322 Mass. 512, 520, which, it is alleged, was made with the intent that the plaintiff should rely upon it, and upon which the plaintiff did rely. Matthews v. Bliss, 22 Pick. 48, 53. Butler v. Martin, 247 Mass. 169, 173.
A plaintiff in an action for deceit is not entitled to nominal
The instant case is distinguishable from Gabriel v. Borowy, 324 Mass. 231, and Sher v. Perlman, 324 Mass. 390, where there were lacking some of the elements necessary to set forth a cause of action for deceit. In Noyes v. Shanahan, 325 Mass. 601, a judgment for possession had been entered in the summary process proceeding. Here no judgment was entered, and the retention by the defendant of the agreement for judgment without filing it in court prevented the entry of any judgment in the District Court. Pontiff v. Alexander, 320 Mass. 514.
The order sustaining the demurrer is reversed, and an order is to be entered overruling the demurrer.