Rosemond v. Campbell, No. 0684

CourtCourt of Appeals of South Carolina
Writing for the CourtBELL; SANDERS, C.J., and GARDNER
Citation288 S.C. 516,343 S.E.2d 641
PartiesMary Jane ROSEMOND and James Rosemond, Appellants, v. Marion CAMPBELL, d/b/a Quality Construction Company and Marion Harris, d/b/a Pickensville Finance Company, Defendants, of whom Marion Harris, d/b/a Pickensville Finance Company is Respondent. Appeal of Marion HARRIS, d/b/a Pickensville Finance Company. . Heard
Docket NumberNo. 0684
Decision Date22 January 1986

Page 641

343 S.E.2d 641
288 S.C. 516
Mary Jane ROSEMOND and James Rosemond, Appellants,
v.
Marion CAMPBELL, d/b/a Quality Construction Company and
Marion Harris, d/b/a Pickensville Finance Company,
Defendants,
of whom Marion Harris, d/b/a Pickensville Finance Company is
Respondent.
Appeal of Marion HARRIS, d/b/a Pickensville Finance Company.
No. 0684.
Court of Appeals of South Carolina.
Heard Jan. 22, 1986.
Decided April 21, 1986.

Page 642

[288 S.C. 518] David D. Armstrong, Greenville, for appellants.

Cecil H. Nelson, Jr., of Wilkins, Wilkins & Nelson, Greenville, for respondent.

Steven W. Hamm, Philip S. Porter, and J.M. Edouard Mille, of the South Carolina Dept. of Consumer Affairs, Columbia, amicus curiae.

BELL, Judge:

This is an action by homeowners against a building contractor[288 S.C. 519] and a finance company arising from a contract for home improvements.

Page 643

The complaint alleges three causes of action: (1) common law fraud; (2) violation of the South Carolina Unfair Trade Practices Act; 1 and (3) derivative liability of the finance company under the South Carolina Consumer Protection Code. 2 The case was tried before a jury. At the close of the homeowners' evidence, the trial judge granted the finance company's motion for a nonsuit with prejudice as to all causes of action. The case proceeded against the contractor and was submitted to the jury on the first and second causes of action. The jury returned a verdict for actual and punitive damages against the contractor. The homeowners appeal the granting of a nonsuit to the finance company. We reverse and remand.

The homeowners, James and Mary Jane Rosemond, own a house at 22 Owens Street in the City of Greenville. They are persons of limited education. Mrs. Rosemond is illiterate.

In April 1979, Marion Campbell, a building contractor doing business as Quality Construction Company, came to the Rosemonds' residence and solicited them to enter a contract for repairs and improvements to their house. Campbell orally agreed to install new roofing, storm windows on all windows, a storm door, and screening on the porch. He also agreed to furnish a suite of living room furniture. The contract price for these goods and services was $3236.69.

The day after the solicitation and oral agreement, Campbell returned to the Rosemonds' house and drove them in his truck to the office of Marion Harris in Pickens. Harris operates a finance company under the name of Pickensville Investment Company. Prior to the transaction with the Rosemonds, he had financed more than a thousand construction or home improvement jobs by Campbell over a period of twenty to twenty-five years. At Harris's office, the Rosemonds executed a second mortgage on their house to Campbell to secure payment of the contract price and a standard form, nonnegotiable promissory note, disclosure statement, [288 S.C. 520] and security agreement with Harris, evidencing an installment loan of $3236.69 at 19.66 per cent annual interest to be repaid in forty-eight monthly installments of $104.00 each. Among other things, the note contained the following notice:

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

After these documents were executed, Campbell immediately assigned the mortgage to Harris, who paid the loan proceeds directly to him.

According to the Rosemond's evidence at trial, the work Campbell contracted to do was either done defectively or, in some instances, not done at all. After attempting unsuccessfully for four years to persuade either Campbell or Harris to complete the work and remedy the defects, the Rosemonds commenced this action. The jury found Campbell fraudulently induced the Rosemonds to enter the contract and awarded actual and punitive damages.

Campbell has not appealed the judgment against him. Our opinion therefore proceeds on the premise that the Rosemonds established a valid claim for fraud against Campbell.

I.

The Rosemonds maintain they also proved actionable fraud against Harris. For this reason, they contend, the trial judge erroneously granted Harris's motion for a nonsuit on the first cause of action. A careful review of the record convinces us

Page 644

that the nonsuit on the first cause of action was properly granted.

In order to establish fraud on the part of Harris, the Rosemonds were required to prove, among other elements of the tort, that Harris made a false representation of a material fact, knowing of its falsity, with the purpose or expectation of having them rely on its truth. See Moye v. Wilson Motors, Inc., 254 S.C. 471, 176 S.E.2d 147 (1970). There is [288 S.C. 521] no evidence in the record that Harris made any representations whatsoever to the Rosemonds concerning the work to be performed by Campbell on their house. Thus, they failed to offer proof of an essential element of their first cause of action against Harris.

At oral argument, counsel for the Rosemonds virtually conceded this point. However, he argued that Harris is a principal in Campbell's construction business and, therefore, any false representations made by Campbell should be imputed to Harris. In effect, the Rosemonds contend Campbell was the agent of Harris when he induced them to enter the contract.

A party asserting agency as a basis of liability must prove the existence of the agency. Paramount Fund, Inc. v. Cusaac, 282 S.C. 497, 319 S.E.2d 354 (Ct.App.1984). In this case, the evidence falls far short of establishing that Harris was a principal to...

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11 practice notes
  • Fluke Corp. v. Milwaukee Electric Tool Corp., 64408-4-I
    • United States
    • Court of Appeals of Washington
    • 11 Julio 2011
    ...S.C. 199, 201, 447 S.E.2d 869 (1994) (holding an "assignee . . . stands in the shoes of its assignor"); Rosemond v. Campbell, 288 S.C. 516, 522, 343 S.E.2d 641 (1986) ("At common law, an assignee's rights can be no greater than those of his assignor.")). [44] Fluke, 2009......
  • Fluke Corp. v. Milwaukee Electric Tool Corp., No. 64408-4-I
    • United States
    • Court of Appeals of Washington
    • 11 Julio 2011
    ...S.C. 199, 201, 447 S.E.2d 869 (1994) (holding an "assignee . . . stands in the shoes of its assignor"); Rosemond v. Campbell, 288 S.C. 516, 522, 343 S.E.2d 641 (1986) ("At common law, an assignee's rights can be no greater than those of his assignor.")). 44. Fluke, 2009 ......
  • Young v. Meeting Street Piggly Wiggly, No. 0677
    • United States
    • Court of Appeals of South Carolina
    • 29 Enero 1986
    ...270 S.C. 490, 495, 309 S.E.2d 776, 779-80 (Ct.App.1983). I believe that the instructions given fairly covered the applicable law, I also [288 S.C. 516] note that the trial judge did, in fact, charge the jury that a storekeeper's duty to warn customers arose from the existence of "dange......
  • Trancik v. USAA INS. CO, No. 3644.
    • United States
    • Court of Appeals of South Carolina
    • 27 Mayo 2003
    ...201, 447 S.E.2d 869, 870 (Ct.App.1994) (holding an "assignee ... stands in the shoes of its assignor"); Rosemond v. Campbell, 288 S.C. 516, 522, 343 S.E.2d 641, 645 (Ct.App. 1986) ("At common law, an assignee's rights can be no greater than those of his assignor."). Ther......
  • Request a trial to view additional results
11 cases
  • Fluke Corp. v. Milwaukee Electric Tool Corp., 64408-4-I
    • United States
    • Court of Appeals of Washington
    • 11 Julio 2011
    ...S.C. 199, 201, 447 S.E.2d 869 (1994) (holding an "assignee . . . stands in the shoes of its assignor"); Rosemond v. Campbell, 288 S.C. 516, 522, 343 S.E.2d 641 (1986) ("At common law, an assignee's rights can be no greater than those of his assignor.")). [44] Fluke, 2009......
  • Fluke Corp. v. Milwaukee Electric Tool Corp., No. 64408-4-I
    • United States
    • Court of Appeals of Washington
    • 11 Julio 2011
    ...S.C. 199, 201, 447 S.E.2d 869 (1994) (holding an "assignee . . . stands in the shoes of its assignor"); Rosemond v. Campbell, 288 S.C. 516, 522, 343 S.E.2d 641 (1986) ("At common law, an assignee's rights can be no greater than those of his assignor.")). 44. Fluke, 2009 ......
  • Young v. Meeting Street Piggly Wiggly, No. 0677
    • United States
    • Court of Appeals of South Carolina
    • 29 Enero 1986
    ...270 S.C. 490, 495, 309 S.E.2d 776, 779-80 (Ct.App.1983). I believe that the instructions given fairly covered the applicable law, I also [288 S.C. 516] note that the trial judge did, in fact, charge the jury that a storekeeper's duty to warn customers arose from the existence of "dange......
  • Trancik v. USAA INS. CO, No. 3644.
    • United States
    • Court of Appeals of South Carolina
    • 27 Mayo 2003
    ...201, 447 S.E.2d 869, 870 (Ct.App.1994) (holding an "assignee ... stands in the shoes of its assignor"); Rosemond v. Campbell, 288 S.C. 516, 522, 343 S.E.2d 641, 645 (Ct.App. 1986) ("At common law, an assignee's rights can be no greater than those of his assignor."). Ther......
  • Request a trial to view additional results

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