Brown v. Pritchett, No. 43739
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | SMITH |
| Citation | 633 S.W.2d 294 |
| Parties | Clara BROWN, Plaintiff-Appellant, v. Odell PRITCHETT, Defendant-Respondent. |
| Decision Date | 27 April 1982 |
| Docket Number | No. 43739 |
Page 294
v.
Odell PRITCHETT, Defendant-Respondent.
Raymond Howard, St. Louis, for plaintiff-appellant.
A. E. Nick, Easton Randolph, Jr., Ferguson, for defendant-respondent.
SMITH, Presiding Judge.
Plaintiff appeals from the action of the trial court in granting defendant Pritchett's motion to set aside the judgment and enter judgment in accord with Pritchett's motion for directed verdict at the end of the evidence. Plaintiff brought his action in two counts. Count I was directed against Odell Pritchett for fraudulent misrepresentation concerning installation of a new roof on a house in Berkeley purchased by plaintiff. Pritchett was the real estate agent who handled the sale of the house to plaintiff. Count II was against the roofing contractor, Cosby, for breach of contract. A default judgment was entered against the contractor and that judgment is not before us for review. 1 The jury returned a verdict against defendant for actual damages of $7300 and punitive damages of $2500. We affirm.
The elements of fraud have been often set forth and need not be repeated here. See Cantrell v. Superior Loan Corp., 603 S.W.2d 627 (Mo.App.1980) (2-5). Each element must be established in order for plaintiff to recover. The evidence to support an inference of fraud must arise above mere suspicion and point logically and convincingly to that conclusion. Fraud is never presumed. Cantrell v. Superior Loan Corp., supra.
Plaintiff's theory was that defendant represented to plaintiff that a new roof was installed on the house in compliance with her sale contract and that the representation was knowingly false. It is doubtful that the evidence is sufficient to support a conclusion that the statement was false, and it is clearly insufficient to support a conclusion that defendant knew it was false.
At the time the sale contract was entered into defendant represented that he would
Page 295
have a new roof put on and then called plaintiff prior to closing to advise her the roof had been installed. 2 Plaintiff's sale contract, as accepted by the sellers, provided for a new roof. The sellers entered into a contract with Cosby which included a provision to "remove existing roof and install new three-in-one two hundred forty pound self-sealing shingle roof, including hips and ridges and total area over sun porch." The contract...To continue reading
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...uncover latent defects. See, e.g., Harkala v. Wildwood Realty, Inc., supra; Emerson v. Ham, 411 A.2d 687 (Me.1980); Brown v. Pritchett, 633 S.W.2d 294 (Mo.App.1982); Provost v. Miller, supra; Hoffman v. Connall, In this case, there was an independent investigation of the soundness of the re......
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...an inference of fraud must arise above mere suspicion and point logically and convincingly to that conclusion. Brown v. Pritchett, 633 S.W.2d 294 (Mo.App.1982). All doubt should be entertained in favor of good faith in determining whether a statement constitutes a misrepresentation. Empire ......