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Soules v. General Motors Corp.





APPEAL from the Circuit Court of Macon County; the Hon. DONALD W. MORTHLAND, Judge, presiding.


Plaintiff James L. Soules appeals the June 30, 1978, order of the circuit court of Macon County which (1) upon motion of defendant General Motors Corporation, dismissed his first amended complaint against that defendant, (2) denied him leave to file a second amended complaint, and (3) entered judgment for defendant.

The allegations of the first amended complaint concern the grant of an Oldsmobile dealer franchise by defendant to Mel Bishop Oldsmobile, Inc. Count I alleged fraudulent representation by defendant to plaintiff concerning the franchisee's original and continuing financial condition. The other count, count II, alleged negligent misrepresentation. The trial court dismissed the complaint for the reason that the record showed as a matter of law that plaintiff was not justified in relying upon the representations ascribed to defendant. Defendant seeks to uphold the trial court's ruling upon that basis and upon the theory, as presented in its motion, that the complaint failed to allege a causal relationship between any misrepresentation by defendant and any damage to plaintiff. Plaintiff maintains that the complaint stated a cause of action not negated by an affirmative matter set forth in defendant's motion.

Counts I and II alleged the following: In March of 1973, Mel Bishop sought to acquire defendant's existing Oldsmobile franchise in Alton, Illinois, by purchasing the existing franchisee's assets and securing a new franchise agreement with defendant. Defendant had a contractual policy of requiring certain minimal financial requirements which varied from one franchise to another. The "minimum owned net working capital" for this franchise was $134,000. Bishop could not meet that requirement and sought financial backing from plaintiff. In March 1973, plaintiff submitted an "Application for Approval of a Financial Investment in an Oldsmobile Dealership." Thereafter, defendant approved Bishop's request and entered into a franchise agreement with him. In reliance on defendant's oral representations that Bishop met or exceeded its minimum franchise requirements, in May 1973, plaintiff invested $50,000 in purchasing capital stock and loaned Bishop $75,000 to acquire the franchise business location. Also in reliance on defendant's oral representations that the franchisee met both defendant's original and continuing financial requirements and in reliance on defendant's integrity, plaintiff was induced to guarantee loans taken by Bishop in the operation of the franchise. During this time, defendant knew that Bishop had not met the minimum or continuing financial requirements, that the franchisee's periodic financial reports were false and that plaintiff did not have actual knowledge of the above. Plaintiff was ignorant of the fact that Bishop failed to meet the original or continuing financial requirements until sometime in 1976 or 1977 when he obtained a partial copy of the franchise agreement. Prior to that he relied on defendant's oral representations and the fact that defendant awarded the franchise and permitted its continued operation.

On or about May 22, 1975, defendant induced or caused Bishop to prepare a letter purporting to terminate the franchise agreement, to forge its execution by the corporate secretary, and to deliver it to defendant. The termination was not required under the terms of the franchise agreement. Defendant knew or should have known that the corporate secretary's signature was forged and that plaintiff had no prior knowledge of the letter. Plaintiff was not aware of the termination until defendant orally advised him that the franchise had been withdrawn and the agreement terminated.

Each of the counts alleged that defendant's conduct caused the unnecessary termination of the franchise agreement and caused plaintiff "to suffer irreparable damage to his good name, credit and business reputation."

Plaintiff's application, his financial statement, the franchise agreement and the termination letter were attached as exhibits and incorporated in the first amended complaint. Exhibits attached to the motion to dismiss included a stockholder's agreement between Mel Bishop Oldsmobile, Inc., Mel Bishop and plaintiff, corporate minutes, and a compensation agreement, all of which show that plaintiff was a director and major stockholder of the corporation which operated the franchise.

In Broberg v. Mann (1965), 66 Ill. App.2d 134, 139, 213 N.E.2d 89, 91, the court stated one element of misrepresentation to be that "the person to whom the statement is made must believe and rely on it, and have a right to do so" (emphasis added). There, a tort action was brought for misrepresentation arising out of a land sale. The defendant seller advertised the land as containing 26 acres plus or minus when in fact it contained only 18. The appellate court reversed a judgment for the plaintiff ruling that as a matter of law neither scienter nor plaintiff's justifiable reliance on the statement of quantity of the land had been proved. Plaintiff had been on the land and his lawyer had been given a photostatic copy of a survey of the land. The court noted that the defendant did not possess any knowledge of the acreage involved superior to that of the plaintiff.

In Schmidt v. Landfield (1960), 20 Ill.2d 89, 169 N.E.2d 229, the court on appeal affirmed the trial court's judgment for defendant on the pleadings. The action sought damages for fraud arising out of certain real estate dealings between the parties. The pleadings showed the following: Defendant, an attorney, had represented plaintiffs in real estate and business transactions. In 1945, one of the plaintiffs and another person acquired a mortgage on some real estate. When the owner died, they and defendant purchased the property. They later sold it and took a purchase money mortgage. In 1954, differences arose between plaintiffs and defendant and they became involved in litigation, in the course of which they reached a settlement whereby plaintiffs received certain other property and turned over to defendant their interest in the mortgage. Plaintiffs executed a general release. Two buildings were located on the mortgaged property. In 1945, the mortgagors held only a long-term leasehold on the property on which the larger building was located. The other building and property were owned in fee simple. Plaintiffs contended that defendant, knowing the state of the title, erroneously advised them that their mortgage was entirely on a leasehold, thus inducing them to relinquish their interest as cheaply as they did.

The supreme court concluded that the plaintiffs had ample opportunity to learn of the true state of facts and were precluded as a matter of law from relying on defendant's assertion concerning the status of their mortgage. The court noted prior similar reasoning in Johnson v. Fulkerson (1957), 12 Ill.2d 69, 145 N.E.2d 31; Bundesen v. Lewis (1938), 368 Ill. 623, 15 N.E.2d 520; and Dickinson v. Dickinson (1922), 305 Ill. 521, 137 N.E. 468.

On the other hand, in MacAuley v. Rickel (1968), 96 Ill. App.2d 283, 238 N.E.2d 603, a suit partly seeking damages for misrepresentation arose over the sale of a car wash business. Evidence indicated that the defendant seller had knowingly misstated the profitability of the business to the plaintiff buyer. A money judgment for the plaintiff was permitted to stand although plaintiff was a business-wise accountant who had failed to examine the books of the business he was purchasing. The appellate court concluded that examination of the books would have been futile because the business was a division of a larger business and was used to experiment with equipment and to train employees. Thus, its books would not have revealed whether defendant's representations were true. The court noted that there as distinguished from Broberg the defendant seller did have superior knowledge of the matters set forth in the representations.

A leading authority in the field of torts notes a change in the attitude of courts> on the question of justifiable reliance and states,

"It is now held that assertions of fact as to * * * the financial status of corporations, * * * may justifiably be relied on without investigation, not only where such investigation would be burdensome or difficult, * * * but likewise where the falsity of the representation might be discovered with little effort by means easily at hand." (Prosser, Torts § 108, at 717-18 (4th ed. 1971).)

No substantial move in this direction is shown by Illinois decisions but MacAuley indicates some relaxation in the stringency of the ...

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