Wilson v. Murch
| Decision Date | 20 February 1962 |
| Docket Number | No. 30783,30783 |
| Citation | 354 S.W.2d 332 |
| Parties | Keith O. WILSON and Lorraine Wilson, (Plaintiffs) Respondents, v. William H. MURCH and Nellie C. Brown, (Defendants) Appellants. |
| Court | Missouri Court of Appeals |
Woodside, McGowen & Dearing Lowell C. McGowen, and Thomas H. Pearson, Clayton, for appellants.
Armstrong, Teasdale, Roos, Kramer & Vaughan, Charles E. Dapron, John P. Emde, and Bruce E. Woodruff, St. Louis, for respondents.
In this action, Keith O. Wilson and Lorraine Wilson, sued defendants William H. Murch and Nellie C. Brown, for damages claimed as a result of alleged false representations in the sale of a house. There was a verdict for plaintiffs for $450.00 actual damages, and $1,000.00 punitive damages. From the judgment on the verdict defendants have appealed.
The essential complaint in the petition is that the defendants in negotiating a sale of a house to plaintiffs, through their agents, and in response to specific inquiries by plaintiffs, falsely stated on several occasions that the furnace in said house was sound and in operating condition; that in reliance upon said representations plaintiffs purchased said house; that said representations were false; that defendants knew that said representations were false, or knew at such time that they, defendants, did not possess sufficient information or knowledge to know whether said representations were true or false; that the falsity of said representations were not known by plaintiffs and did not become known to them until after their purchase of said house; that had plaintiffs known of the falsity of the representations they would have refused to proceed with the closing of the sale; that said representations were made by defendants with the intent that they should be relied upon by plaintiffs and that plaintiffs would thereby be induced to purchase said real estate; that plaintiffs did rely upon said representations, and purchased said improved real estate to their damage. It was further alleged that after making said purchase plaintiffs discovered that said furnace was not sound and in working condition, but that same was totally inoperable and, in such condition, it could not be restored to operating condition without completely rebuilding said furnace; that it would cost $700.00 to put said furnace in proper working condition and that by reason of the falsity of the defendants' representations plaintiffs were damaged in the amount of $700.00. It was also alleged that by reason of said misrepresentations plaintiffs were entitled to punitive damages in the sum of $5,000.00. There was a prayer for damages in the total sum of $5,700.
The defendants' answer denied specifically the allegations of fraud contained in plaintiffs' petition.
Defendants' first assignment of error is that the trial court should have sustained their motion for a directed verdict at the close of plaintiffs' case, and a like motion filed at the close of all the evidence for the reason that no representations were made which could constitute a basis for recovery. We have for review only the action of the court in refusing the motion filed at the close of all the evidence, for the reason that defendants, by introducing evidence to support their defense after their motion at the close of plaintiffs' case was overruled, waived their right to complain of the court's action with respect to said motion. Sides v. Mannino, Mo.App., 347 S.W.2d 391; Snead v. Sentlinger, Mo., 327 S.W.2d 202. We will, therefore, detail the facts shown by the evidence which have bearing on the issue, viewing the evidence in the light most favorable to plaintiffs' case.
Plaintiffs were husband and wife. In the Spring of 1958 they became interested in a piece of property owned by the defendants and located in Kirkwood, Missouri. Defendants were brother and sister, and had inherited the property from their mother, who died in 1956. Each defendant owned an undivided one-half interest in said property. Defendant William H. Murch with his family, which consisted of a wife and son, lived in the property from June 1947 until February 4, 1958. On April 1, 1958 defendants listed the property for sale with Harry Herring Co., real estate dealers. The members of this firm were Harry C. Herring, his wife, Arlene B. Herring, and his son, Harry G. Herring. Harry G. Herring handled the listing contract with Mr. Murch. He testified that at the time the listing contract was signed Mr. Murch, in response to an inquiry about the condition of the furnace, stated that it had been in operation for the past heating season. The next day Harry G. Herring related to his father, in Mr. Murch's presence, the conversation he had had with Mr. Murch regarding the furnace. Mr. Herring, Sr., testified that on that occasion he asked Mr. Murch if the furnace was in good working condition. Mr. Murch replied that the furnace was in working condition up to the day he moved, and was still in working condition. Arlene B. Herring who was defendants' witness, testified that on one occasion when she was on the premises with Mr. and Mrs. Wilson they asked about the condition of the furnace. She then testified: 'I did tell them that the furnace was in operating order because Mr. Herring told me that the owner told him that the furnace was in working condition.' She further testified, 'I believe I talked with Mrs. Wilson over the phone and again she asked me if the furnace was in operating condition and I said yes it was, according to the owner the furnace was in operating condition.' Mrs. Herring further testified that on another occasion she met Mr. and Mrs. Wilson at the premises and Mr. Wilson 'asked me if the furnace was in operating condition and I told him, yes, the owner said it was in operating condition.'
Mr. Wilson testified that in April he went to the premises at which time Mr. Herring was present. He further testified: Mrs. Wilson testified that on one occasion she and her husband inspected the property at which time Mr. Herring was present. She testified,
The furnace was not in operation at any time plaintiffs were on the premises. Plaintiffs made an offer of $13,000.00 for the property. This offer was accepted by defendants and a purchase agreement was entered into on May 21, 1958. The transfer of the property to plaintiffs was made June 30, 1958 and plaintiff moved in the same day. In July 1958, Mrs. Wilson called Doll Heating Company of Kirkwood to service the furnace. Two men were sent to the premises for that purpose by the Doll Company. After examining the furnace one of these men said to Mrs. Wilson, 'Lady, you don't have a furnace', and stated that the radiator on the inside had fallen and that there was no point in continuing the work. Mrs. Wilson then called Mr. Herring and told him what had happened. Mr. Herring suggested that she get at least two other opinions from furnace men before she did anything further, and that, in the meantime, he would talk to the previous owners. Plaintiffs thereafter secured estimates for the replacement of the furnace. C & R Heating & Service Co. of Overland, Missouri, submitted a proposal for replacing the furnace for $605.00 and for repairing the stoker $90.00, total $695.00. Kirkwood Sheet Metal Works, Inc. of Kirkwood submitted a proposal for replacing the furnace and repairing the stoker for a total sum of $715.00. Doll Heating Company's estimate was $700.00.
Richard Lanham, an employee of the Doll Heating Company, examined the furnace. When he arrived at the property, the smoke pipe had been removed and there was revealed the fact that the bottom part of the radiator, which was over the combustion chamber, was missing. It was found on the floor inside the casing of the furnace when the casing was removed. In that condition the furnace was not in a condition to be operated safely, because the break would permit smoke and fumes from the combustion chamber to enter the house from the furnace. The radiator was in such a condition that it would not be practical to repair it for the reason that, no parts necessary for repair were available on account of the age of the furnace. Lanham testified that the break in the radiator did not appear to be a new one, but had been there for some time. It was a break of long standing and the condition would have been noticed by anyone living in the house because of the smoke and fumes. The condition could not have been seem from the furnace door, and no one just looking at the furnace could discover the condition of the radiator. The Doll Company removed the furnace and replaced it with a new one at the cost of $750.00.
It is urged by defendants in support of their motion to dismiss that an essential element of a cause of action for fraud is missing, namely, knowledge on the part of defendants that the furnace was not in a sound and operating condition at the time the representations were made. In their argument in support of this contention defendants rely upon their own evidence which tends to show such lack of knowledge. This is...
To continue reading
Request your trial
-
Morris v. Stifel, Nicolaus & Co., Inc.
...an intentional misrepresentation as an element of common law fraud. As the Missouri Court of Appeals stated in Wilson v. Murch, 354 S.W.2d 332, 338-39 (Mo.App.1962): To recover for fraudulent representations, it is not necessary that it be shown that defendant had actual knowledge of the fa......
-
State ex rel. State Highway Commission v. Warner
...Rys. Co., supra, 251 S.W. loc. cit. 64(2); Laughlin v. Kansas City Southern Ry. Co., 275 Mo. 459, 205 S.W. 3, 8(13); Wilson v. Murch, Mo.App., 354 S.W.2d 332, 340-341(20); Anderson v. Welty, supra, 334 S.W.2d loc. cit. 139(12); Kelly v. Rieth, Mo.App., 168 S.W.2d 115, 118(1); State ex rel. ......
-
Kreutz v. Wolff
...benefit of all reasonable inferences to be drawn therefrom, Ackmann v. Keeney-Toelle Real Estate Co., supra, l. c. 488; Wilson v. Murch, 354 S.W.2d 332, 337 (Mo.App.1962). Appellants' evidence showed that respondents told appellants that the restrictions had been changed. This statement was......
-
Emily v. Bayne
...which were substantially the same as those alleged; that is, statements having the same general meaning and effect. Wilson v. Murch, Mo.App., 354 S.W.2d 332. The evidence did establish, as this defendant recognizes, that in her letter of February 16 to Mr. Emily Mrs. Murphy described the bu......