Barylski v. Andrews

Decision Date21 January 1969
Docket NumberNo. 32675,32675
Citation439 S.W.2d 536
PartiesCharles BARYLSKI and Loretta Barylski, Plaintiffs-Respondents, v. Bert ANDREWS and Betty Andrews, Defendants-Appellants.
CourtMissouri Court of Appeals

William J. Hormberg, Clayton, for defendants-appellants.

William R. Kirby, Milton F. Napier, St. Louis, for plaintiffs-respondents.

NORMILE, Special Judge.

In this action for fraud in the sale of a house, defendants appeal from a judgment on a jury verdict in favor of both plaintiffs and against both defendants for the sum of $1,500.

The property at 4924 Plover in St. Louis is an asbestos shingle bungalow-type residence with three bedrooms, living area, dining area, bath and built-in kitchen. On March 9, 1953, it was partially destroyed by fire with very substantial damage to the interior of the house. The fire rendered the house untenantable since the entire inside was charred and burned. After the fire the house was condemned by the City of St. Louis. Subsequently, the house was purchased by the defendants who made application in June of 1953 to the City of St. Louis for a permit to repair the home. The defendants did repair the house by their own efforts and with the use of 'swapped' labor. By May 12, 1954, defendants had complied with all the requirements of the building inspectors, and a permit was given for occupation of the home.

The defendants moved into the home in 1954. About two years later, they began to cover the basement with sheet rock. The house was then listed for sale with the Keeney-Toelle Realty Company and was later sold to that company in a trade on an apartment house wherein the defendants were allowed the sum of $8,200 on the house. Defendants continued to live in the house as tenants, and about seven months later they repurchased the home from Keeney-Toelle for less than the selling price. After the repurchase, defendants made other repairs, including installation of a $1,200 kitchen. They also began to make a playroom or a rathskellar in the basement. During this period, the burnt portion of the basement was covered with sheet rock, and the remaining charred portions of the basement were painted white. In 1958, the house was listed for sale with the Jay Realty Company. Defendant Bert Andrews had previously worked as a salesman with this company and was a friend of their agent, Mr. Barbera. Mr. Andrews discussed the fire and the repairs made to the house with Mr. Barbera.

In October 1958, Mr. Barbera showed this house to the plaintiffs Charles and Loretta Barylski, who were making their first home purchase. At this time the house was newly painted, had new hardwood floors and a built-in kitchen. At the time of the first visit of plaintiffs to this house, neither of the defendants was present. About a week later, plaintiffs again visited the house when defendant Betty Andrews was present; and she showed them through the house and the basement. Mrs. Andrews told plaintiffs that the light bulbs had been taken out of the basement because the children left the lights on. Upon inquiry of Loretta Barylski, Mrs. Andrews stated to plaintiffs that 'the house is in fine condition.' Mrs. Andrews did not tell plaintiffs that the house had been in a serious fire. Plaintiffs thereafter purchased the house from defendants for $10,000.

In April 1963 after a leak developed in the roof, water ran down behind the walls of the home. While repairs were being made, it was discovered that there was charred wood between the wallboards. Plaintiffs found the two-by-four studs were scorched and burned in the living room, two bedrooms and kitchen. The wallboard in the basement was removed, and the sills were found to be burned and charred. It was possible to knock hunks of charred wood off the sills with the fingers. This condition covered about 50 per cent of the basement's ceiling.

All testimony at trial indicated that the house was structurally safe. However, an expert testified that in 1958 the property would have been worth $9,000 without evidence of the fire but that the property would then have been worth only $4,500 under the conditions as outlined in a hypothetical question covering the condition of the house at the time of the sale.

It is to be noted that the defendant, Bert Andrews, never met, talked to, or made any statements to the plaintiffs or to either of them.

Appellants urged that a submissible case was not made by plaintiffs since it was not shown that an intentional misrepresentation of a material fact was made by the defendants to the plaintiffs and since there was no duty on defendants' part to mention the previous fire damage to the house in the absence of inquiry by the plaintiffs.

Fraud is never presumed, but must be established by evidence and the burden of proof is on the party who charges fraud. Schnuck v. Kriegshauser, Mo., 371 S.W.2d 242; Shephard v. Woodson, Mo., 328 S.W.2d 1. However, it is not necessary that the elements be established by direct testimony but may be established by facts and circumstances. Lowther v. Hays, Mo., 225 S.W.2d 708. Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker's knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer's ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon. Schnuck v. Kriegshauser, supra; Smith v. Tracy, Mo., 372 S.W.2d 925.

The tendency of modern decisions is not to extend, but to restrict the rule requiring diligence and similar rules, such as caveat emptor, and the rule granting immunity for dealers' talk; to condemn the falsehood of the fraud-feasor rather than the credulity of his victim. Shechter v. Brewer, Mo.App., 344 S.W.2d 784, l.c. 789.

Was there a representation? In determining this question we must consider not only the statement by Betty Andrews that: 'The house is in fine condition,' but also the actions of both defendants in concealing the condition of the home and the failure of both to disclose this to the plaintiffs. In Lindburg Cadillac Company v. Aron, Mo.App., 371 S.W.2d 651, it was stated: '* * * a representation is not confined to words or positive assertions; it may consist as well of deeds, acts, or artifices of a nature calculated to mislead another and thereby to allow the fraud-feasor to obtain an undue advantage over him * * * If he fails to disclose an intrinsic circumstance that is vital to the contract, knowing that the other party is acting upon the presumption that no such fact exists, it would seem to be quite as much a fraud as if he had expressly denied it, or asserted the reverse, or used any artifice to conceal it, or to call off the buyer's attention from it.'

In the case of Vendt v. Duenke, Mo.App., 210 S.W.2d 692, the petition of plaintiff alleged that the defendants had cheated plaintiffs by installing the foundation of their home on filled ground without footings of any kind and that this faulty construction was covered up and concealed by the defendants so as to escape detection. The Court stated: 'It is held that before mere silence can amount to an actionable fraud, it must relate to a material matter known to ...

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