Beagle v. Bagwell

• Decision Date: 17 November 1964
• Docket Number: No. F-336,F-336
• Citation: 169 So.2d 43
• Parties: Buth E. BEAGLE, Appellant, v. May Paris BAGWELL, Appellee.
• Court: Florida District Court of Appeals

Page 43

169 So.2d 43

Buth E. BEAGLE, Appellant, v. May Paris BAGWELL, Appellee.

No. F-336.

District Court of Appeal of Florida, First District.

Nov. 17, 1964.

Rehearing Denied Dec. 14, 1964.

Maurice Wagner, Holly Hill, and Richard D. Bertone, Daytona Beach, for appellant.

Coxe & Stephens, St. Augustine, for appellee.

WIGGINTON, Judge.

Plaintiff has appealed a final judgment entered by the trial court dismissing with prejudice her amended complaint for failure to state a cause of action. By her appeal she contends that the facts alleged in her amended complaint are sufficient to state a cause of action against the defendant, and that the court erred in dismissing it.

The complaint alleges that the defendant was the owner of a residence in St. Augustine which she desired to sell; that preliminary to offering the property for sale to plaintiff, defendant caused the residence to be inspected for termites by a local exterminating company and was informed that the building was almost totally destroyed by wood infesting organisms commonly known as termites; that for the purpose of accomplishing the sale of the property to an unknowing purchaser defendant employed a carpenter to patch and cover up the deterioration in the building which had occurred from the infestation of termites in the roof, siding, studding, sheathing and understructure of the porch and main building; that well knowing the true condition of the building defendant offered it for sale to plaintiff upon the positive representation that the dwelling was sound and in an excellent condition free from termites or other wood infesting organisms, which representations were known by the defendant to be false and fraudulent and made for the sole purpose of inducing plaintiff to purchase the property; that a reasonable and ordinary inspection of the house by the plaintiff prior to her purchase of it failed to reveal the damage caused by the infestation of termites because of its concealment from ordinary inspection by the fraudulent and deceitful acts of the defendant; that in reliance upon defendant's representation that the structure of the house was in good sound condition and free from termites or termite damage, and based upon her own reasonable and ordinary inspection of the property, plaintiff purchased it from defendant and went into possession thereof; that shortly after occupying the premises plaintiff discovered that the floors of the building were giving way under stress and strain of normal use, and holes appeared in the walls, whereupon plaintiff caused an inspection to be made of the house by a contractor and professional exterminator; that as a result of such inspections it was found that the house was in a complete state of dilapidation and subject to collapse from ordinary use; that the concealed termite damage existing at the time of the sale to plaintiff was revealed by removal of veneer siding and the flooring; that plaintiff would not have purchased the property from defendant had she known of its true condition and that as a result of the fraud and deceit practiced by defendant upon plaintiff, the latter has suffered damages for which judgment is prayed.

At the outset it should be borne in mind that we are not here concerned with the sufficiency of a complaint in equity to state a cause of action for rescission or cancellation of a deed, therefore, the rules of law applicable to that type of action are not conclusive. We are here concerned with an action at law to recover a money judgment for damages suffered by plaintiff as a result of fraud and deceit practiced upon her by defendant. Generally speaking, it has been held to be the law of Florida that to state a cause of action for damages resulting from the fraudulent acts of another, the complaint must allege the representation claimed to be fraudulent; that it was known by defendant to be fraudulent at the time it was made to plaintiff; that it was made for the purpose of inducing plaintiff to act in reliance thereon; that plaintiff did act in reliance on the correctness of the false or fraudulent representation made by defendant, as a result of which plaintiff suffered damage. ¹

It is a generally accepted rule of law in Florida that under any standard of conduct, and in the absence of accompanying actual deception, artifice, or misconduct, where the means of knowledge are at hand and are equally available to both parties, and the subject matter is equally open to their inspection, if one of them does not avail himself of those means and opportunities, he will not be heard to say that he was deceived by the other's misrepresentations. ²

In Davis v. Dunn, ³ the defendant seller represented to the plaintiff prospective purchaser that the house being offered for sale was sound and free of termite damage or infestation. Plaintiff had ample opportunity to inspect the house for termite damage, or to have an inspection made by an exterminating company on his behalf. Instead of doing either, plaintiff relied on the representation of defendant with regard to the house being free from termites or termite damage. After purchasing the house it was found that it...