Fogarty v. Van Loan
1962 Mass. LEXIS 779, 344 Mass. 530, 183 N.E.2d 111 (1962)
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Rule of Law:
A seller's general statements concerning the quality of a property are non-actionable statements of opinion or "seller's talk," and a warranty made after the execution of a purchase and sale agreement is unenforceable for lack of new consideration.
Facts:
- On August 24, 1957, a prospective homebuyer and his wife viewed a house built and owned by the seller.
- While in the cellar, the builder-seller stated that the house 'was well built' and had 'a good concrete floor, good foundation walls.'
- The parties signed a purchase and sale agreement on September 15, 1957.
- In early October, after the homebuyer found water in the cellar, the builder-seller told him it was normal for a new house and would disappear.
- On November 1, after a second complaint of water, the builder-seller's wife asked if he would stand behind the house, to which he replied, 'Oh, yes, I will stand behind it, there is nothing wrong with the house.'
- The final closing on the house occurred on December 5, 1957.
- After the closing, the homebuyer discovered several cracks in the foundation and found water in the cellar again in January 1958.
Procedural Posture:
- The plaintiff (homebuyer) sued the defendants (sellers) in a trial court on counts of deceit and breach of warranty.
- The case was tried before a jury, which returned a verdict for the plaintiff.
- The trial judge set aside the jury's verdict and entered a verdict for the defendants.
- The plaintiff appealed the judge's decision to the state's highest court.
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Issue:
Do a builder-seller's general statements that a house is 'well built' constitute actionable deceit, and does a promise to 'stand behind' the house made after the purchase agreement is signed create an enforceable warranty?
Opinions:
Majority - Spalding, J.
No. The builder-seller's statements do not constitute actionable deceit because they are non-actionable statements of opinion, and the subsequent promise is not an enforceable warranty. The court reasoned that the statements that the house was 'well built' with a 'good concrete floor' fall under the rule that 'false statements of opinion, of conditions to exist in the future, or of matters promissory in nature are not actionable.' The court distinguished this case from Pietrazak v. McDermott, where a specific statement that 'there would be no water in the cellar' was found actionable, stating that Pietrazak 'goes to the verge' and should not be extended. Regarding the warranty claim based on the promise to 'stand behind' the house, the court held it was unenforceable because it was made after the purchase and sale agreement was signed and was not supported by any new consideration.
Analysis:
This decision reinforces the traditional common law distinction between actionable misrepresentation of fact and non-actionable statements of opinion, often called 'puffery' or 'seller's talk,' in the context of real estate sales. It signals a reluctance to expand seller liability for general, laudatory comments about property quality, thereby placing a greater burden on buyers to exercise due diligence. The ruling also strictly applies the pre-existing duty rule, reaffirming that a promise modifying a contract, such as a post-sale warranty, is unenforceable without new consideration. This serves as a critical reminder for buyers to secure all essential warranties within the initial purchase and sale agreement.
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