Emerson v. Ham
| Decision Date | 27 February 1980 |
| Citation | 411 A.2d 687 |
| Parties | James A. EMERSON and Georgia F. Emerson v. Sharon HAM and Bessie D. Kenniston. |
| Court | Maine Supreme Court |
Richard W. Elliott, Boothbay Harbor (orally), for plaintiff.
Fitzgerald, Donovan, Conley & Day, Duane D. Fitzgerald, John J. Sears, Mark L. Haley, Bath (orally), for Sharon Ham.
Perkins, Thompson, Hinckley & Keddy, Thomas Schulten (orally), Thomas B. Wheatley, Portland, for Bessie D. Kenniston.
Before McKUSICK, C. J., and WERNICK, GODFREY and ROBERTS, JJ.
In this action for alleged fraudulent misrepresentation in the sale of real estate, tried before a Superior Court jury in Lincoln County, the presiding justice at the close of the presentation of plaintiffs' evidence directed a verdict for defendants. We deny plaintiffs' appeal.
Plaintiffs, the purchasers of a house and land in Boothbay Harbor, sued defendant Ham (the seller) and defendant Kenniston (the seller's broker) for fraudulent misrepresentation, alleging that both defendants had "represented to (p)laintiffs that the subject premises were provided with an existing drilled well which said well produced potable water at a flow rate of a minimum of two (2) gallons per minute." Only four days after plaintiffs took title and only two days after they moved in, the well ran dry.
Seller Ham had purchased the land in October, 1974 and soon thereafter had a house built on it. In November, she had an artesian well drilled. According to the drilling contractor, the well was 250 feet deep and supplied between 2 and 21/2 gallons of water per minute. Ham and her three children lived in the house from mid-December, 1974, to the closing of her sale to the Emersons on August 29, 1975. According to her testimony she experienced no problems with the water supply.
There was testimony that on July 27, 1975, when plaintiffs went with broker Kenniston to view the property, the seller made the above-quoted representation concerning the water supply. There was also testimony that the representation was repeated by both the seller and the broker just prior to the closing on August 29. Plaintiffs offered only two additional pieces of evidence on the issue of liability: first, the fact that the seller had listed her property for sale in January, less than one month after moving into her new house; 1 and second, the fact that the float valve arm, removed from the toilet flush tank by plaintiffs after they had lived in the house for some time, had been bent to allow less water into the tank. 2
In order to prevail in an action for fraud or deceit the plaintiff must prove inter alia that the defendant's representation was (a) false and (b) made "with knowledge of its falsity or in reckless disregard of whether it is true or false." Letellier v. Small, Me., 400 A.2d 371, 376 (1979). Viewing plaintiffs' evidence, as we must, "in the light most favorable to (them) as the parties against whom the verdict was directed," Reed v. Rule, Me., 376 A.2d 445, 445 (1977), we find the question whether defendants' representation was in fact false when made a close one. The fact that the water supply failed so soon after the representation is at least some evidence of its falsity. On the other hand, plaintiffs presented no evidence that we view sufficient to justify a jury concluding that the seller either knew the representation was false or acted in reckless disregard of its truth or falsity. A fortiori plaintiffs presented no evidence whatever that the broker, who merely repeated the seller's statement, knew of its falsity or was reckless in relying upon its truth.
This court has stated many times that a jury verdict may not be based on a "mere scintilla" of evidence, Jordan v. Portland Coach Co., 150 Me. 149, 150, 107 A.2d 416, 417 (1954), or upon "pure conjecture," Freeport Sulphur Co. v. Portland Gas Light Co., 135 Me. 408, 416, 198 A. 606, 610 (1938). See generally 1 Field, McKusick & Wroth, Maine Civil Practice § 50.1 (1970). On the necessary element of scienter (i. e., knowledge or reckless disregard of falsity), plaintiffs' entire case boils down to two isolated bits of circumstantial evidence: (1) the seller's listing of the property within a month of moving in and (2) the bent float valve in the toilet tank. That evidence is simply too remote to prove the seller's, or the broker's, state of knowledge concerning the rate of water flow from the well. See Ginn v. Penobscot Co., Me., 334 A.2d 874, 880-81 (1975); Lawrence v. Larsen, 156 Me. 168, 173-76, 163 A.2d 364, 367-68 (1960); Mills v. Richardson, 126 Me. 244, 250, 137 A. 689, 692 (1927).
Plaintiffs did not establish that the seller had participated in the water-conservation modification of the flush valve; and in any event, there might well have been perfectly innocent reasons for that modification and for her having placed the house on the market the previous January. The presiding justice correctly refused to let the jury speculate that it was the seller's knowledge that the well did not produce at least two gallons...
To continue reading
Request your trial
-
Teter v. Old Colony Co.
...to a duty to make an independent inspection to 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 indep......
-
Franklin Property Trust v. Foresite, Inc.
...sound appellate practice dictates that appellate cognizance be denied as to issues raised for the first time on appeal, Emerson v. Ham, Me., 411 A.2d 687, 690 (1980); Walsh v. City of Brewer, Me., 315 A.2d 200, 209 (1974), standing is a threshold issue bearing on the court's power to adjudi......
-
Cuthbertson v. Clark Equipment Co.
...manual and all other evidence presented on the issue of breach of warranty in the light most favorable to the Plaintiff, Emerson v. Ham, Me., 411 A.2d 687, 689 (1980), it is possible that the quoted language is a description of the Michigan 75-IIIA, and perhaps even an affirmation or promis......
-
Enercon v. Global Computer Supplies, Inc.
...and innocent misrepresentation as defined in sections 552 and 552C of the Restatement (Second) of Torts, respectively. See Emerson v. Ham, 411 A.2d 687, 690 (Me.1980). The Law Court refused for procedural reasons. Id. Ten years later, the Law Court expressly adopted the Restatement's formul......