Marshall v. Crocker
| Decision Date | 22 August 1980 |
| Citation | 387 So.2d 176 |
| Parties | William G. MARSHALL and Rhonda Carolyn Marshall v. Rodney K. CROCKER, as Guardian of Ray G. Crocker, a person of unsound mind. 79-40. |
| Court | Alabama Supreme Court |
Norborne C. Stone, Jr. of Stone, Partin & Granade, Bay Minette, for appellants.
Francis A. Poggi, Jr., Fairhope, for appellee.
This is an appeal from a decree of the Circuit Court of Baldwin County holding that there was no fraud in the sale of a house that had been damaged by fire. We affirm.
In 1977, through a real estate broker, the Marshalls bought a 15-year-old house from Rodney K. Crocker, as Guardian of Ray G. Crocker, a person of unsound mind. (There was neither contact nor negotiation between the Marshalls and Crocker.) The purchase price of the house was paid by a cash payment, a first mortgage and a second mortgage to Crocker payable in eight months.
About two weeks after the Marshalls moved into the house, Mr. Marshall discovered that there had been a fire in the attic. He called the broker, and asked him, "Did you know there was a fire over here?" The broker replied, "No, I didn't." Subsequently, the broker went to the house, inspected the attic, and, indeed, found that there had been a fire there. (The evidence shows that the fire occurred in 1971.) Nothing more was said or done by either Marshall or the broker until the broker sought to help Crocker by calling Marshall about paying the second mortgage. At that time, a year had passed by, and the mortgage was in default. Marshall let it be known that he was not going to pay because he felt like some fraud had been involved. The broker offered to purchase the house from Marshall. No agreement between them was ever consummated. Eventually, Crocker began foreclosure proceedings.
After foreclosure was begun, Marshall brought suit to enjoin, alleging misrepresentation and deceit in the sale of the house to him.
Rodney Crocker testified that Ray Crocker lived there until he went to a nursing home; that while the roof sagged there had been no damage from leakage; that the sagging was normal for that age house, and could result from the way the roof was constructed. An expert witness testified that repair done after the fire was structurally sound, but 40 to 50 percent of the area where work needed to be done is not structurally sound. He opined that the roof structure was not structurally sound and the cause of this was the fire.
On the question of misrepresentation of the soundness and the fire, the evidence shows that neither the broker nor the owner said anything. Moreover, the evidence shows that Marshall did not inquire about the fire when the house was shown to him on two occasions; he made no effort to inspect the attic before the sale-his inspection was two weeks after he moved in, and at that time he found evidence of the fire.
The issue presented on appeal is whether the trial court erred by finding that there was no actionable fraud committed by the seller when he did not reveal the fire damage. We hold that it did not.
Mr. Justice Clopton stated in Jordan & Sons v. Pickett, 78 Ala. 331 (1884), that:
The fraud, which entitles a purchaser of property to a right of action for deceit, ordinarily, consists in the misrepresentation or concealment of a material fact, on which he has a right to rely, and does rely, operating an inducement to the contract, and whereby he is deceived and injured. It is not indispensable that the misrepresentation or concealment shall be the sole inducement; it is sufficient if it materially contributes, and is of such character that the purchaser would not have consummated the contract, had he known the falsity of the statement, or the fact suppressed. In case of an active representation, knowledge of its falsity is not essential. A contract, obtained by misrepresentation, may be avoided, or an action for damages sustained, though the asserting party may not know the statement is false. It is as much a fraud at law to affirm as true what is untrue, though not known to be so, as to assert what is known to be untrue. The law imposes the duty of ascertaining the truth of the statement before making it, and demands in case of omission that the representation should be made good.
While it may be more difficult to define, with clearness and precision, the distinction between suppression and falsehood as constituting actual fraud, it may be said, generally, that silence, in order to be an actionable fraud, must relate to a...
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