The plaintiffs purchased real estate (premises) in Webster from the defendants Dr. and Mrs. Jablonski (sellers) with the defendant McCann acting as a broker on behalf of the sellers. The plaintiffs claim that the defendants made fraudulent representations concerning the premises and argue that, in the circumstances, they are not barred by the statute of limitations in bringing suit more than two years after the sale of the premises. The plaintiffs appeal from judgments which dismissed their action following allowance of the defendants' motions to dismiss under Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974).
We summarize the facts alleged in the complaint, which was mailed on November 22, 1974. From October, 1971, to January 12, 1972, the defendants attempted to sell the premises to the plaintiffs. They "made certain statements and representations ... orally and in writing, to the effect that there was a 600 foot artesian well existing upon and
All parties agree that the appropriate statute of limitations is G.L.c. 260, § 2A, inserted by St. 1948, c. 274, § 2, which provides that an action of tort of this character must be commenced "within two years next after the cause of action accrues." The principal dispute involves the time at which any cause of action accrued. The defendants argue that the cause of action accrued at the time of the alleged misrepresentations and no later than January 12, 1972, the date the premises were conveyed to the plaintiffs. If so, an action commenced in November, 1974, would be barred by the two-year statute of limitations.
The plaintiffs argue that their cause of action did not accrue until they knew or reasonably should have known of the misrepresentations. They rely on our opinion in Hendrickson v. Sears, 365 Mass. 83, 91 (1974), which stated that a client's cause of action against an attorney for negligent certification of title to real estate does not accrue until the misrepresentation is discovered or reasonably should have been discovered. The Hendrickson opinion (at 89-90) cites other circumstances where we have applied the same principle.
We have not been asked previously to consider whether a cause of action for deceit in the sale of real estate accrues
It is true that, unlike the circumstances in the Hendrickson case, this case does not involve a fiduciary relationship between the plaintiffs and the defendants, because the defendants engaged in an arm's length transaction with the sellers and the sellers' broker. However, to the extent that any misrepresentation concerns a fact which was "inherently unknowable" by the plaintiffs at the time it was made and at the time of the sale, we think that the rule of the Hendrickson case should be applied in determining when the plaintiffs' cause of action accrued.
Considering first the allegations that the plaintiffs were misinformed concerning the right of way over a paved driveway on adjacent property, we conclude that the misrepresentation ceased to be "inherently unknowable" by the time of the sale and that the cause of action then accrued. A right of way is an interest in land which might appear of record in a registry of deeds. If it did not so appear, the plaintiffs had an opportunity to inquire further concerning the basis for the representation that a right of way did exist. As matter of law, the plaintiffs could reasonably have known of the misrepresentation concerning the right of way at least by the date they accepted a deed to the premises. In the circumstances, between the plaintiffs and the defendants, the misrepresentation concerning the right of way ceased to be "inherently unknowable" at least by the time of the sale. The plaintiffs could have conducted a title search, employing an attorney acting on their behalf, and, in determining when the cause of action accrued against these defendants, the plaintiffs must take the consequences of any failure to do so or of any omission on the part of their attorney.
We come then to the question whether the plaintiffs' failure to allege that they used due diligence in ascertaining the location of the well is fatal. The plaintiffs would have the burden of proving facts which take their case concerning the well outside the impact of the statute of limitations. That would include proof that (a) they did not learn of the location of the well until within two years of the commencement of this action, a circumstance they have alleged, and (b) in the exercise of reasonable diligence, they should not have known of the location of the well more than two years prior to the commencement of the suit, a circumstance they have not alleged. Under our former equity practice, a bill had to allege facts which showed that any apparent bar of the statute of limitations had been removed. Drury v. Poor, 280 Mass. 564, 565 (1932). In an action at law, however, the declaration did not have to allege the saving facts. Mendes v. Roche, 317 Mass. 321, 325 (1944). If the defendant pleaded the statute of limitations, the plaintiffs could allege the saving circumstance in reply to that defense. Blackler v. Boott, 114 Mass. 24, 26 (1873). In an early opinion, this court held that a replication that the defendants' fraud was not discovered until within the period of the statute before the commencement
We would be most reluctant to conclude that under the Massachusetts Rules of Civil Procedure a more technical pleading requirement exists than existed before the adoption of those rules. The rules of civil procedure were designed to facilitate pleading and to eliminate technicalities and niceties nurtured by our former system of pleading. As a matter of Federal practice, a complaint in a fraud case, which reveals an apparent lack of timeliness, need not allege more than the basic claim and that discovery of the fraud was made within the statute of limitations period preceding suit. See Goldstandt v. Bear, Stearns & Co., 522 F.2d 1265, 1268-1269 (7th Cir.1975); Turner v. Lundquist, 377 F.2d 44, 48 (9th Cir.1967); Garcia v. Bernabe, 289 F.2d 690, 692-693 (1st Cir.1961). We conclude that the complaint contained sufficient allegations concerning the well to avoid a motion to dismiss which relied on the statute of limitations. Of course, if allegations of fraud are not adequate, as a general rule, leave to amend should be granted.
We come finally to the defendants' argument that, with the averment of fraud, the circumstances constituting fraud are not "stated with particularity" as required by Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974). We believe that there were adequate allegations of the circumstances constituting the fraud. The complaint alleged the misrepresentation specifically — "that there was a 600 foot artesian well existing upon and serving the property." It alleged who made the statements, their falsity, and the defendants' knowledge of their falsity. The complaint also alleged to whom the statements were made, the period during which they were made, that they were made to induce the plaintiffs' reliance, and that the plaintiffs did rely to their harm. There can be no question that the defendants were warned adequately concerning the particular statements which
The judgments for the defendants are reversed. The motions to dismiss are vacated in so far as the plaintiffs allege fraudulent representations concerning an artesian well on the premises.
Of course, if, as appears to be the case, the plaintiffs did retain an attorney, the plaintiffs may not be without recourse against him. At least, under the Hendrickson rule, their claim against that attorney, with whom they did have a fiduciary relationship, was not time barred if the plaintiffs reasonably relied on his advice.