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Oltmer v. Zamora





APPEAL from the Circuit Court of Macon County; the Hon. JERRY L. PATTON, Judge, presiding.


Rehearing denied April 21, 1981.

Plaintiffs, William K. Oltmer and Bonnie J. Oltmer, appeal judgments of the circuit court of Macon County entered in favor of defendants, Ed Drobisch & Co., Realtors, an Illinois corporation, and Juanita Jones, and against plaintiffs notwithstanding the failure of the jury to agree upon a verdict as to counts II and III of plaintiffs' complaint. We deem the evidence to have been sufficient to raise a question of fact as to each count and accordingly reverse and remand for a new trial.

Suit was filed January 12, 1979. It concerned the sale of residence property by defendants, Joseph B. and Elaine M. Zamora, to plaintiffs. Count I charged those defendants with a breach of the implied warranty of habitability. Plaintiffs obtained a jury verdict for $7,500 on that count and it is not before us on appeal. Counts II and III charged defendants, Ed Drobisch & Co., Realtors, and Jones, with misrepresentation. Count II sought compensatory damages and count III sought punitive damages. These were the counts upon which the jury was unable to agree and upon which the court, after discharging the jury, entered judgment notwithstanding the inability of the jury to agree. Judgment on those counts is before us on appeal after the trial court's finding pursuant to Supreme Court Rule 304(a). 73 Ill.2d R. 304(a).

Plaintiffs were a married couple who moved from Independence, Missouri, to the Decatur area. Wishing to buy a home in that area, they contacted the defendant Drobisch firm, who sent their agent, defendant Jones, to plaintiffs. She showed plaintiffs several houses and they eventually purchased one of these homes, that house built and owned by the defendants Zamora. The undisputed evidence at trial showed the house to be 13 to 15 inches higher on its south side than on its north side. The evidence upon which the claim of misrepresentation was based was sharply disputed. Taken most favorably to plaintiffs, as it must be (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504) it showed: (1) Juanita Jones was an aunt of Elaine M. Zamora but did not disclose this to plaintiffs; (2) Mrs. Jones disparaged several of the houses which she showed to plaintiffs; (3) Mrs. Jones told plaintiffs that Joseph B. Zamora who built the house was a "very reputable" builder and "one of the best in the area" although she knew he had never built any type of structure before; (4) Mrs. Jones had made several inspections of the house but when told by Mr. Oltmer, during the showing of the house, that he felt like he was "walking uphill," responded that could not be so because the house was new; and (5) when measurements confirmed the existence of the sloping nature of the house, Mrs. Jones suggested to plaintiffs that they attempt to sell it and implied that they do so without informing the purchasers of the problem.

• 1 The parties agree that for a statement of a person to constitute the tort of misrepresentation it must be (1) of a material nature, (2) untrue, (3) known by the person making it to be untrue, believed by him to be untrue, or made in culpable ignorance of its truth or falsity, (4) relied upon by the victim to his detriment, (5) made for the purpose of inducing the reliance, and (6) such that the victim's reliance led to his injury. Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App.3d 37, 390 N.E.2d 393; Broberg v. Mann (1965), 66 Ill. App.3d 134, 213 N.E.2d 89.

Defendants emphasize that the representation must be as to matters of fact and not of opinion, citing Parker v. Arthur Murray, Inc. (1973), 10 Ill. App.3d 1000, 295 N.E.2d 487. There, statements by dance-hall proprietors to a customer that he had great potential as a dancer made for the purpose of inducing the customer to contract for lessons were as a matter of law held to be insufficiently factual to constitute the basis of fraud. However, we consider determination of whether a statement which might appear to be an opinion is nevertheless to be treated as a statement of fact is more complicated than Parker would indicate. The Restatement spoke to the question in the following manner:

"Representation of Opinion Implying Justifying Facts

(1) A statement of opinion as to facts not disclosed and not otherwise known to the recipient may, if it is reasonable to do so, be interpreted by him as an implied statement

(a) that the facts known to the maker are not incompatible with his opinion; or

(b) that he knows facts sufficient to justify him in forming it.

(2) In determining whether a statement of opinion may reasonably be so interpreted, the recipient's belief as to whether the maker has an adverse interest is important." Restatement (Second) of Torts § 539 (1965).

The comments to the foregoing ...

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