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Sher v. Robin

DECEMBER 23, 1970.

HERBERT SHER, PLAINTIFF-APPELLANT,

v.

STEPHEN H. ROBIN ET AL. DEFENDANTS-APPELLEES, (NORTH SHORE SPEED AND AUTO, INC., ADDITIONAL PARTY DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE N. LEIGHTON, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT: Plaintiff, Herbert Sher, brought a cause of action against Stephen H. Robin (hereinafter referred to as defendant) and Lee Dreyfus for rescission of an agreement for the sale of an automotive speed equipment corporation, North Shore Speed and Auto, Inc. Plaintiff also requested damages, both actual and punitive, and other relief. Upon plaintiff's motion during trial, Dreyfus was dismissed as a party defendant. The complaint alleged that plaintiff was induced to make the purchase in reliance upon fraudulent material misrepresentation perpetrated by defendant and Dreyfus. Defendant counterclaimed against plaintiff and the corporation for sums paid by him for advertising on behalf of the corporation.

The trial court found there were no misrepresentations as alleged by plaintiff and entered judgment in defendant's favor. The court also entered judgment against the corporation and the plaintiff individually in defendant's favor on his counterclaim for $6,555.13. Plaintiff alone appeals from these judgments.

The North Shore Speed and Auto, Inc. was in the business of selling automotive parts. A substantial portion of its sales were through mail orders solicited by catalog. In the spring of 1966, defendant was desirous of selling the business and contracted with a business broker to seek a purchaser.

Plaintiff responded to an advertisement regarding the sale of the business and was introduced to defendant whereupon they entered into negotiations for its sale. At one of the meetings between the parties plaintiff was accompanied by Lee Howard Treschansky, a lawyer with an accounting background. Defendant was present with his accountant Dreyfus who presented the financial statements of the business which were later introduced into evidence as Plaintiff's Exhibit #7. The statements consisted of a balance sheet as of March 31, 1966, a statement of income and retained earnings for the year ending March 31, 1966, and a statement of income for three months ending March 31, 1966. The statements contained a notation that they had been prepared from books and records without audit or verification and were presented without opinion.

The purchase was consumated on June 10, 1966. On September 2, 1966, plaintiff filed this lawsuit resulting in judgment in favor of defendant.

Plaintiff appeals and contends that the judgments were against the manifest weight of the evidence.

In Broberg v. Mann, 66 Ill. App.2d 134 (1965), the court expressed the following pertinent language at page 139:

"Comprehensively stated, a misrepresentation to be the basis of a charge of fraud, either in a suit at law or in equity, must contain the following elements:

(1) It must be a statement of a material fact, as opposed to opinion;

(2) it must be untrue;

(3) the party making the statement must know or believe it to be untrue;

(4) the person to whom the statement is made must believe and rely on it, and have a right to do so;

(5) it must have been made for the purpose of inducing the other party to act; and

(6) the reliance by the person to whom the statement is made must ...


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