
325 Mass. 465 (1950)
91 N.E.2d 342
HERMAN H. GOLDING
vs.
108 LONGWOOD AVENUE, INC.
Supreme Judicial Court of Massachusetts, Suffolk.
January 6, 1950.
March 8, 1950.
Present: QUA, C.J., RONAN, WILKINS, SPALDING, & COUNIHAN, JJ.
*466 S.B. Stein, (C. Evans with him,) for the defendant.
A.W. Parker, (S.H. Rudman with him,) for the plaintiff.
WILKINS, J.
This is a bill in equity to rescind a lease of an apartment in a building in the course of construction, because the rooms were smaller than represented, and to recover an advance payment of rent. The bill, as amended, is based upon fraud and, in the alternative, upon mutual mistake of fact. The defendant appealed from a final decree in favor of the plaintiff. The evidence is not reported.
The judge, made voluntary findings of material facts, which, as the result will not be affected, we assume were intended to include all facts necessary for the determination of the issues, and treat as the equivalent of a report under G.L. (Ter. Ed.) c. 214, § 23, as amended. The defendant's treasurer told the plaintiff that the rooms were to be of certain specific measurements. The dimensions given to the plaintiff were in fact distances shown on a blue print plan as running from the exterior walls to the center of partitions, but the plaintiff, who was given no copy of the plan, believed them to be inside measurements, and in that belief entered into the lease. The sizes of the rooms were one of the factors which induced him to sign. After the plaintiff learned that the rooms were to be smaller than he had been told, and before the apartment was completed and made ready for occupancy, he notified the defendant that he repudiated the lease because of the discrepancy in the sizes of the rooms. The judge also stated, "But I am unconvinced that this was the real reason for the repudiation," and "I do not find that the defendant misstated the sizes of the rooms with the intention to deceive the plaintiff."
The defendant rightly makes no contention that it was not bound by the statements of its treasurer. McCarthy v. Brockton National Bank, 314 Mass. 318, 325.
It is first necessary to analyze the findings. It is not expressly said that the defendant gave the plaintiff the outside measurements as inside measurements. But that is implied in the finding that the plaintiff learned that the rooms were to be smaller than he had been told. There *467 was, accordingly, a misstatement of fact as to area, which could be the basis of an action for deceit, should the other elements of such an action be present. Powers v. Rittenberg, 270 Mass. 221, 223-224. Forman v. Hamilburg, 300 Mass. 138, 139-140. The test to determine whether the plaintiff is to be relieved of his contract by reason of any fraudulent misrepresentation is the same as that applied in actions of tort for deceit. Plumer v. Luce, 310 Mass. 789, 801-802. The statement by the judge, "I do not find that the defendant misstated the sizes of the rooms with the intention to deceive the plaintiff," is a finding that the burden of proof in this respect had not been sustained. Uccello v. Gold'n Foods, Inc., ante, 319, 321, 322. National Shawmut Bank v. Cumming, ante, 457, 461. The burden of proving intent to deceive was on the plaintiff. Kerrigan v. Fortunato, 304 Mass. 617, 620. Gedart v. Ejdrygiewicz, 305 Mass. 224, 228. Hence, there was no fraud in fact.
We must proceed in the absence of any finding as to the defendant's knowledge of the misrepresentation. The defendant either did, or did not, know whether the outside measurements which it gave as inside measurements of rooms in the building, of which it was making a lease as landlord, were in fact outside measurements. If it did know, there was fraud in law, even without intent to deceive. Flynn v. Colbert, 251 Mass. 489, 493. If it did not know, there still could be fraud in law, because the dimensions were facts susceptible of knowledge, and the treasurer's statements could have been found to be a representation that he had knowledge of their truth. Harwood v. Security Mutual Life Ins. Co. 263 Mass. 341, 347. Howard v. Barnstable County National Bank, 291 Mass. 131, 136. Palmer v. Motley, 323 Mass. 129, 136. The representations, contrary to the defendant's contentions, were material. See Rudnick v. Rudnick, 281 Mass. 205, 207. It could have been inferred that the statements were made with intent that the plaintiff rely upon them. It was expressly found that he did so rely, inferably justifiably, and was damaged. Schleifer v. Worcester North Savings Institution, 306 Mass. 226, 227-228, and cases *468 cited. Although the sizes of the rooms were only one of the factors which induced the plaintiff to sign, this was enough. National Shawmut Bank v. Johnson, 317 Mass. 485, 490. The express finding on this point renders immaterial much of the defendant's argument, which broadly asserts, without specification, that the judge found that the plaintiff would have signed the lease whatever the measurements. That the judge was "unconvinced" that the discrepancy in the sizes of the rooms was "the real reason for the repudiation" is immaterial. Where the elements of a cause of action for deceit could have been found to be present, the plaintiff did not have also to prove his motive for exercising his rights. Crim v. Umbsen, 155 Cal. 697, 702. Siegel v. Lewis, 74 Cal. App. (2d) 86, 90. See Bates v. Cashman, 230 Mass. 167; Moss v. Old Colony Trust Co. 246 Mass. 139, 150. We think that a case for equitable relief could have been found on the ground of fraud in law.
The decree did not specify on which ground it was entered. It was expressly found that the plaintiff believed that the measurements given were inside measurements. If this was also the belief of the defendant, there was a mutual mistake of fact, and a case for relief could have been found on that ground also. Spurr v. Benedict, 99 Mass. 463, 466-467. Long v. Athol, 196 Mass. 497, 501-502. Shapira v. Wildey Savings Bank, 213 Mass. 498, 500-501. Jeselsohn v. Park Trust Co. 241 Mass. 388, 391-392.
Decree affirmed with costs.
