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05/28/87 Curtis A. Brown, v. Broadway Perryville Lumber

May 28, 1987

CURTIS A. BROWN, PLAINTIFF-APPELLEE

v.

BROADWAY PERRYVILLE LUMBER COMPANY, DEFENDANT-APPELLANT



Before reaching the issue of fraud, we first examine the plaintiff's third amended complaint to determine whether a cause of action has been stated. Defendant contends that the trial court erred in dismissing defendant's motion to dismiss plaintiff's third amended complaint, as the complaint failed to allege all of the essential elements of a cause of action based on fraud.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 1170, 156 Ill. App. 3d 16, 108 Ill. Dec. 593 1987.IL.700

Appeal from the Circuit Court of Winnebago County; the Hon. John C. Layng, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

The defendant, Broadway Perryville Lumber Company, appeals from a judgment in a bench trial awarding the plaintiff, Curtis A. Brown, $7,000 in damages based upon defendant's fraudulent misrepresentation that disability insurance provided for in a retail installment agreement between the parties would become effective immediately upon plaintiff's entering into the agreement with defendant. On appeal, defendant contends: (1) that the plaintiff failed to prove the essential elements of a common law fraud action; (2) that the trial court erred in dismissing defendant's motion to dismiss plaintiff's third amended complaint, as the complaint failed to allege the essential elements of a cause of action based on fraud; and (3) that the plaintiff failed to meet his burden of proving damages for fraud.

The evidence presented at trial showed that plaintiff, Curtis A. Brown, and his wife, Gloria Brown, entered into an agreement in early 1983 with defendant through its salesman, Donald Carlson, to remodel their kitchen. Mrs. Brown testified that the Browns asked Carlson to set up the financing for the remodeling job and informed him that they wanted disability insurance on the contract. Mrs. Brown stated that Carlson responded, "No problem. I'll set everything up . . . we will get everything in order. All I will need you to do is to come in the office . . . and sign the papers."

Mrs. Brown related that the monthly payment on the financing included the insurance payment and that Carlson told the Browns the insurance went into effect immediately upon approval of the loan by the bank. The bank approved the loan on April 13, 1983, and, as far as the Browns were concerned, the loan closed on that date.

Mrs. Brown testified that the Browns were unaware of the fact that a certificate of completion had to be filled out by them before the bank would disperse the funds to defendant. Nothing was said to the Browns regarding the certificate nor was the certificate made known to them. Mrs. Brown was shown a copy of the retail installment agreement, which made a single reference to a completion certificate. The witness stated that eventually she did sign such a certificate sometime subsequent to May 20, 1983, after the work was completed and after her husband had become hospitalized with pulmonary lung disease.

When the Browns submitted a claim to the insurance company for payment on their loan, the company denied the claim. Mrs. Brown stated that she and her husband would never have signed the installment agreement had they not been told the insurance was effective immediately upon their signing. According to the witness, the Browns were still paying the insurance payment as though it were in effect because the premium was part of the monthly payment and that payment had not changed.

Donald Carlson, a salesman for defendant testifying as an adverse witness for plaintiff, stated that the retail installment agreement and a contract for the work to be performed by defendant were both signed on April 13, 1983. Carlson recalled discussing credit life and disability insurance with the Browns and that they wanted insurance on Mr. Brown before they would sign the contract. Carlson stated that the installment agreement made no mention of the effective date of disability insurance. Counsel for plaintiff then pointed out the paragraph within the agreement which indicated insurance commences on the date of the contract. Carlson maintained that although the contract is filled out prior to the contracting job, the terms of the agreement do not go into effect until the job is turned into the financing institution, City National Bank, for payment.

Carlson stated that payment on the loan started 30 days after completion of the job and that at that time the insurance started. When asked if the contract stated that the insurance did not start until 30 days after completion, Carlson replied in the negative. Carlson also testified that when the contract and the installment agreement were executed, no Discussion transpired regarding the need for a certificate of completion signed by the Browns when the remodeling work was completed.

Carlson stated that at the time of the signing of the documents, he went over the installment agreement with the Browns, telling them exactly how much the payments were and how much the insurance was costing them. It was Carlson's testimony that he did not tell the Browns that plaintiff would be covered by the insurance on the date they signed the agreement, that the Browns did not give Carlson any money for the insurance, and that the Browns did not request any ...


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