This case comes before us on an appeal from an order of the Superior Court overruling the defendant Pratt’s demurrer to the declaration, on a bill of exceptions to the refusal of the court to order a judgment for the defendants upon the first and third counts, on the dismissal , of the plaintiff’s exceptions after the first trial, and on a bill of exceptions to certain rulings and refusals to rule at the last trial.
At the last trial the plaintiff waived his claim under all the counts except the second and third, and the demurrer to these two counts is all that is material under the defendant Pratt’s appeal. Since the former hearing of the case in this court (see 154 Mass. 445) the second count has been amended, and the defects in it which were then pointed out have been remedied. The objections which are principally urged against it in its *522present form are, first, that the running of the railroad trains between North Stoughton and Boston was not a matter affecting the value of the farm so directly that it could be the subject of a fraudulent representation, and, secondly, that it was a subject in regard to which the plaintiff had ample opportunity to obtain information for himself, and that he had no right to rely on the representations of the defendants.
As to the first objection, it seems clear that the proximity of a dwelling-house to a railroad station in the vicinity of Boston is a matter which tends greatly to affect the value of the property. It is ordinarily one of the first subjects to attract the attention of a purchaser. The frequency of the arrival and departure of trains at different hours of the day is as much to be considered as the existence of the railroad. We have no doubt that this was a matter which had such a relation to the value of the property that it might be the subject of a fraudulent representation.
The most difficult question in the case grows out of the fact that the subject of the misrepresentations was one of which the plaintiff easily might have obtained information from other sources. This question arises on the demurrer, and in a slightly different form on the bill of exceptions taken at the trial.
It has often been held, in general terms, that one bargaining with another must use reasonable diligence to discover for himself facts obvious to an ordinary observer, of which the means of knowledge are equally available to both parties. If he fails to do this he cannot maintain an action of deceit for the misrepresentation of them. Salem India Rubber Co. v. Adams, 23 Pick. 256. Brown v. Leach, 107 Mass. 364. Poland v. Brownell, 131 Mass. 138. But in the application of this rule, the circumstances of each case should be considered to determine whether the plaintiff has been guilty of such inexcusable negligence as should preclude him, under a general rule of public policy, from having a remedy against one who has fraudulently abused his confidence. It has been held that one may recover for false representations of facts which he could have ascertained by an examination of records in the registry of deeds; Grimes v. Kimball, 3 Allen, 518, 523; and that one buying a large number of carpets in a furnished house may take the seller’s statement of their meas*523urement, although he could easily measure them for himself. Lewis v. Jewell, 151 Mass. 345. Looking first at the demurrer, we are of opinion that the allegations' of the second count are sufficient. It is charged that the defendants, to induce the plaintiff to purchase, falsely and fraudulently made these representations in regard to the running of trains, and that the plaintiff believed them to be true, and was thereby induced to purchase. It cannot be said that the times of the running of railroad trains is a matter so easily ascertainable by all persons under all circumstances that it can never be the subject of a fraudulent representation. The allegation is that it was made the subject of a fraud in this case. The circumstances are not set out in the declaration, and need not be. Moreover, it is alleged that the defendants were acting as agents of the plaintiff, and in a relation of confidence the plaintiff would be warranted in relying on their assertions, when he would not be if they were representing only an adverse interest.
If we consider in this connection the exception taken at the trial to the refusal to direct a verdict for the defendants on this count, we find that the plaintiff was a native of Sweden, who spoke English imperfectly; that Pratt, one of the defendants, while they were in a railway car waiting for the train to start for North Stoughton to look, at the farm, undertook to find out for the plaintiff in regard to the running of trains, and went out of the car and got a time table, and after his return looked at it, and made the false representations for which this action is brought. The testimony was that he professed to be reading from the time table when he made the statement, and that when he had finished reading from it he put it in his pocket. It appeared that the plaintiff exchanged his real estate in Everett for this farm, and there was evidence that the defendants acted as his brokers in making the exchange, and that they were paid0 a commission by him for their services. Under these circumstances we cannot say, as matter of law, that the plaintiff was so careless in trusting Pratt that he should be precluded from recovering for the fraud practised upon him in regard to the trains. We are of opinion that the ruling on the demurrer to this count, and the rulings at the trial, were correct.
The third count was in the ordinary form for money had and *524received, with a bill of particulars claiming for cash paid “ by mistake and under misapprehension of facts at the time of the ¡conveyance,” etc. Under this count evidence might be introduced which would warrant a recovery, and in the absence of a motion for further particulars we are of opinion that the count was sufficient, and that the demurrer was rightly overruled. Hayes v. Wilson, 105 Mass. 21.
After the first trial, and before the last, the defendant Pratt took an exception to the refusal of the judge to “ affirm the judgment of the Superior Court ” upon the first and third counts, at the time of allowing his motion to dismiss the plaintiff’s exceptions to the rulings on these counts, for failure to enter the exceptions in the Supreme Judicial Court. The refusal was •right. There was no judgment of the Superior Court to affirm. There was merely a ruling at the first trial that the plaintiff could not recover on these two counts, and at the same time there was a verdict for the plaintiff on the second count, and a bill of exceptions filed by the defendants, which was afterwards sustained in this court. On the order for a new trial all matters were open, and the plaintiff availed himself of his right to file motions to amend his pleadings, and the motions were allowed.
There remain for consideration two or three questions raised by the exceptions taken at the last trial. It is now immaterial whether there was evidence to warrant the instruction given in regard to the possible combination or conspiracy of the defendants, for the jury found specially that they were partners, and they were therefore both holden for what was done by either of them in the transaction of the partnership business.
The defendants requested the court to rule that the action could not be maintained on the third count. But the bill of exceptions recites that there was evidence tending to prove this count, and nothing appears to show that there was error in submitting it to the jury. Dana v. Kemble, 17 Pick. 545. Boston & Worcester Railroad v. Dana, 1 Gray, 83.
There appears to be an error in the return of the verdict for the plaintiff on both of these counts. One count was in contract and the other in tort, and they are alleged to be for the same cause of action. Counts in contract and in tort cannot be *525joined in the same suit unless they are for the same cause of action. The jury should have been instructed that, if they found for the plaintiff on one count, they should find for the defendant on the other. The finding was for the plaintiff for $200 on each count. No motion appears to have been made and no exception taken in regard to this error of the jury. If we interpret the record correctly, the plaintiff, as a condition of taking judgment on the finding, should be required to remit his verdict on one of these counts, and the judgment should then be rendered on the other. But as statements in different parts of the record are somewhat indefinite and confusing, we leave this part of the case for further proceedings in the Superior Court. Exceptions overruled.