
    Gurney Percy vs. Francis F. Bibber.
    Suffolk.
    Jan. 9.
    March 3, 1883.
    Field & W. Allen, JJ., absent.
    In an action of tort for fraudulent representations in the sale of a business, a letter from the plaintiff to the defendant, suggesting charges of false representations, and attempting to obtain a settlement, is inadmissible in evidence in favor of the plaintiff.
   Holmes, J.

The exceptions pressed by the defendant relate to the admission of four letters from the plaintiff to the defendant, suggesting charges of false representations, and attempting to obtain a settlement. The plaintiff argues that, if he found the business which he bought of the defendant was not what it was represented, it was his duty promptly to call the defendant’s attention to the fact; that the letters were competent to show that he made a claim upon the defendant, and the time and nature of the claim, and also to show his intention to rescind the contract. But the declaration is in tort for fraudulent representations only, although the writ sounds in contract also. It does not go upon a rescission and seek to recover the purchase money. If the plaintiff had a cause of action for deceit, he was under no duty to give any notice or make any demand, or to use other promptness than that prescribed by the statute of limitations. The fact that he promptly alleged that he had such a cause of action, or made a claim, or sought to rescind, is no more evidence in his favor than the fact that he alleges the same thing now. In Atwater v. Clancy, 107 Mass. 369, the plaintiff’s letters seem not to have been objected to by the defendant.

It is further argued, that the letters were written under such circumstances that a denial or explanation would naturally be expected and called for. But no such circumstance is pointed out, nor do we discover any which would not make all accusations of fraud in a previous bargain admissible. The bill of exceptions does not state that any one of the letters, except that of May 31, was referred to in the subsequent conversations; and, as to that, we do not understand that what was said was put in evidence, or anything more than the fact that the letter was referred to, which was proved as evidence that the letter was received. Exceptions sustained.

H. E. Mather, for the defendant.

J. L. Eldridge, for the plaintiff.  