Brickell v. Collins

• Decision Date: 05 February 1980
• Docket Number: No. 7910SC269,7910SC269
• Citation: 44 N.C.App. 707,262 S.E.2d 387
• Parties: Margaret BRICKELL v. D. K. COLLINS and Jo Elizabeth Collins, d/b/a Collins Construction Company.
• Court: North Carolina Court of Appeals

Page 387

262 S.E.2d 387

44 N.C.App. 707

Margaret BRICKELL v. D. K. COLLINS and Jo Elizabeth Collins, d/b/a Collins

Construction Company.

No. 7910SC269.

Court of Appeals of North Carolina.

Feb. 5, 1980.

Jordan, Morris & Hoke by Joseph E. Wall, Raleigh, for plaintiff-appellee.

Boyce, Mitchell, Burns & Smith by G. Eugene Boyce and James M. Day, Raleigh, for defendant-appellant D. K. Collins.

CLARK, Judge.

Defendant sold a newly completed house and lot to plaintiff. In so doing he impliedly warranted to her that at the time of passing the deed the dwelling, together with all the fixtures, was substantially free from major structural defects and was constructed in a workmanlike manner. See Griffin v. Wheeler-Leonard & Co., 290 N.C. 185, 225 S.E.2d 557 (1976); Hartley v. Ballou, 286 N.C. 51, 209 S.E.2d 776 (1974); 13 Strong's N.C. Index 3d Vendor & Purchaser § 6.1 (1978).

Clearly, the plaintiff has alleged and offered evidence tending to show a breach of implied warranty. However, an action for breach of implied warranty would in this case be barred by the ten-year statute of limitations, N.C.Gen.Stat. § 1-15(b) (repealed, effective 1 October, 1979). It is apparent that plaintiff relies on fraud as the basis for recovery in this action for the purpose of bringing the claim within N.C.Gen.Stat. § 1-52 providing for a limitation of three years from the time of discovery of fraud.

The following essential elements of actionable fraud are well established: (1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974); Johnson v. Owens, 263 N.C. 754, 140 S.E.2d 311 (1965); Moore v. Wachovia Bank & Trust Co., 30 N.C.App. 390, 226 S.E.2d 833 (1976). It is settled that where there is a duty to speak, the concealment of a material fact is equivalent to fraudulent misrepresentation. Griffin v. Wheeler-Leonard & Co., supra.

We find, however, that one of the essential elements of fraud is not supported by the evidence and was not found by the trial court. The plaintiff has failed to show that defendant D. K. Collins Knew the masonry veneer was not anchored to the frame with metal ties as required by the Raleigh Building Code, Sec. 15(5). The evidence is sufficient to support the findings of the trial court that the structural defect was material and that defendant D. K. Collins as builder was responsible for the defect. There was evidence that the masons who performed the work for defendant used metal ties, but that the ties, particularly in the area where the wall cracked, were not properly spaced as required by the Code. There was evidence that defendant furnished sufficient metal ties to the masons, and that the ties would not be visible when put in place between the framing and the brick. Nonetheless, even though the defendant on a daily basis observed their work, there is no evidence that he knew that the metal ties used by them were not spaced as required.

In addition, the trial court concluded: "2. Collins knew, Or should have known, that the house was constructed with an inadequate number of wall ties." (Emphasis added.) The phrase "or should have known" does not meet the essential element of guilty knowledge or fall within any recognized exception to the rule that defendant must have knowledge of the falsity in order to be liable for fraud. In Griffin, supra, the court stated: "There is no evidence whatever that Wheeler Knew that the Griffin house had been constructed so that there would, or likely would, be a continuing water problem in the crawl space." 290 N.C. at 199, 225 S.E.2d at 566. The Court held that the directed verdict on the fraud issue was properly sustained. Similarly, the general rule is that "(s)ilence, in order to be an actionable fraud, must relate to a material matter Known to the party and which it is his legal duty to communicate to the other contracting party . . . ." (Emphasis added.) 37 Am.Jur.2d Fraud § 145 (1968). See also, Setzer v. Old Republic Life Insurance Co., 257 N.C. 396, 126 S.E.2d 135 (1962).

There are exceptions to the rule that to recover for fraud the defendant must have knowledge of the falsity. Guilty knowledge will be implied from a statement made by a vendor who affirms a material fact which he does not know to be true. Silver v. Skidmore, 213 N.C. 231, 195 S.E. 775 (1938); Pate v. Blades, 163 N.C. (Strong) 267, 79 S.E. 608 (1913). Under special circumstances the Court may imply knowledge on the speaker, such as the inventor of a machine, "who must be supposed to have been fully informed as to (a machine's) good and bad qualities." Unitype Co. v. Ashcraft Bros., 155 N.C. (Strong) 63, 67, 71 S.E. 61, 62 (1911). Under certain conditions if a party to a bargain avers the existence of a material fact recklessly, the party will be held responsible for the falsehood. Roberson v. Williams, 240 N.C. 696, 83 S.E.2d 811 (1954); Atkinson v....