Russow v. Bobola

• Decision Date: 11 January 1972
• Docket Number: Gen. No. 71--24
• Citation: 277 N.E.2d 769,2 Ill.App.3d 837
• Parties: George A. RUSSOW and Hazel C. Russow, Plaintiffs-Appellants, v. Leon A. BOBOLA et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 769

277 N.E.2d 769

2 Ill.App.3d 837

George A. RUSSOW and Hazel C. Russow, Plaintiffs-Appellants, v. Leon A. BOBOLA et al., Defendants-Appellees.

Gen. No. 71--24.

Appellate Court of Illinois, Second District.

Jan. 11, 1972.

Ostrom & Johnson, Glen Ellyn, for plaintiffs-appellants.

Donovan, Dichtl, Atten, Mountcastle & Roberts, Wheaton, Robert A. Cox, Delbert S. Lyle, glen Ellyn, for defendants-appellees.

SEIDENFELD, Presiding Justice:

This action arises from the sale of a house by the defendant Bobolas to the plaintiff Russows. The plaintiffs seek rescission of the deed and punitive damages, alleging that the defendants fraudulently misrepresented and concealed material information of water and flooding conditions in connection with the sale.

In September of 1967 the Russows went to the office of Glenshire, Inc. seeking to purchase a home, and were taken to the Bobola home by Glenshire employee Barbara Wiggins, formerly Barbara Swanson. The listing agreement for the sale of this house named Harold Dato, the president of Glenshire, Inc., as the broker. After five visits to the home, plaintiffs purchased it. Since then the basement and garage have flooded to depths of 30 to 50 inches on ten occasions.

Glenshire, Inc., alleged with Dato to be the agent of the Bobolas, was dismissed as a party defendant some five months prior to trial on the ground that no cause of action was stated against it. The trial court hearing the case without a jury found for the remaining defendants at the close of the plaintiffs' evidence. Plaintiffs appeal from both orders. They also contend that the court erred in denying them leave to amend and in disallowing testimony concerning their attorneys fees and expenses.

At the trial, testimony established that during the twenty-five months that the Bobolas owned the house, it had twice flooded approximately thirty inches. Glenshire employees were informed in both instances, and Harold Dato may have had personal knowledge of one such incident. However, no mention of the floods was made during the five times plaintiffs visited the house prior to the consummation of the sale. In fact, shortly before the sale, the Bobolas had washed off and painted over all of the water marks left by the floods. While plaintiffs never inquired whether the house flooded, they did ask whether the drain outside the garage was adequate. Mr. Russow says Mr. Bobola answered that it was; while Mrs. Russow says Bobola answered that it was not, but that there was another large sewer across the way, and that there was talk that more sewers would be installed.

In ruling on the motion to dismiss at the close of the plaintiffs' evidence, the evidence presented, together with all reasonable inferences, must be considered in the light most favorable to the plaintiffs, and if there is any substantial evidence tending to prove the plaintiffs' allegations, the motion must be denied. City of West Frankfort v. Fullop, 6 Ill.2d 609, 617, 129 N.E.2d 682 (1955).

Fraud has been said to comprise anything calculated to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another. Majewski v. Gallina, 17 Ill.2d 92, 99, 160 N.E.2d 783 (1959). This deception may consist of a single act or combination of circumstances, suppression of truth or suggestion of what is false, direct falsehood or innuendo, speech or silence, look or gesture. People ex rel. v. Gilmore, 345 Ill. 28, 46, 177 N.E. 710 (1931); Citizens Savings & Loan Ass'n v. Fischer, 67 Ill.App.2d 315, 322, 214 N.E.2d 612 (1966).

The trial court found that there was insufficient evidence on which to base an action for misrepresentation against any of the defendants. It appears from his remarks at the time the decision was rendered that the court felt that the only affirmative statement of whether or not the drain was adequate was actually an expression of opinion rather than fact and that the plaintiffs relied on their own judgment when they purchased the home rather than upon any statement or silence by the defendants.

We cannot agree that this is a proper assessment of the involvement of the Bobolas. What is determinative as to the Bobolas is not merely what they said, but what was left unsaid under the particular combination of circumstances in the record. While silence in a business transaction does not generally amount to fraud, mere silence is quite different from concealment. Silence accompanied by deceptive conduct or suppression of material facts results in active concealment, and it then becomes the duty of a person to speak. In such case, if a party to a contract of sale does not disclose the whole truth, having the requisite intent to deceive, this amounts to fraud equally with an affirmative falsehood. Forest Preserve Dist. of Cook County v. Christopher, 321 Ill.App. 91, 105, 106, 52 N.E.2d 313 (1943); Leonard v. Springer, 197 Ill. 532, 538, 64 N.E.2d 299 (1902); Kohl v. Lindley, 39 Ill. 195, 201 (1866). The Bobolas not only failed to tell the plaintiffs that the house had flooded twice, but washed and painted away all water marks which were visible after the floods, thus leaving no indication that the house had problems of this nature. This conduct tended to mislead the plaintiffs and substantially affected their power to make a knowledgeable judgment in purchasing the house. In addition, the statement by Bobola, in answer to a question by Mrs. Russow as to the reasons for the sale, that he would be moving to the East after he had qualified for a bonus at his place of employment, when in fact he admitted that he at no time intended to go to New York, seemed also calculated to deceive the purchasers. Moreover, bobola's answer as to the adequacy of the drain indicated that the drainage system was adequate, when in fact he knew the drainage to be inadequate by reason of the two floods he had experienced. While it is true that the plaintiffs had a duty of induiry regarding the premises and are chargeable with all knowledge which an examination conducted with ordinary care would provide, the matter undisclosed here is of such a nature that it would not be readily...