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Keywords

plaintiffdefendantappealtrialwill

tortplaintiffdefendanttrial

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Oltmer v. Zamora, 94 Ill.App.3d 651, 418 N.E.2d 506, 49 Ill.Dec. 652

Facts

The plaintiffs, William K. Oltmer and Bonnie J. Oltmer, moved from Independence, Missouri, to the Decatur area and contacted the defendant Drobisch firm to purchase a home. The agent, Juanita Jones, showed them several houses, including one built by the defendants Zamora. Evidence presented at trial indicated that the house had a significant slope, and the plaintiffs alleged that Jones made several misrepresentations about the property and the builder's reputation, which they relied upon when making their purchase.

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.

Issue

Did the real estate agent make the alleged misrepresentations, and should the jury have been allowed to decide on those counts?

The Appellate Court, Green, J., held that issue as to whether real estate agent made the alleged misrepresentations was for jury.

Rule

For a statement to constitute misrepresentation, it must be material, untrue, known to be untrue by the maker, relied upon by the victim, and made for the purpose of inducing reliance.

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.

Analysis

The court found that the evidence presented could support a jury's determination that the agent made misrepresentations regarding the builder's reputation and the condition of the house. The court emphasized that the jury could have deemed the evidence clear and convincing, particularly given the agent's undisclosed relationship with the builder and her contradictory statements about the house's condition.

Whether to believe plaintiffs or Mrs. Jones as to whether she made the claimed statement as to Joseph B. Zamora's reputation as a builder was for the jury.

Conclusion

The Appellate Court reversed the trial court's judgment regarding the real estate agency and its agent, remanding the case for a new trial on the misrepresentation counts.

The trial court erred in entering judgment as to those counts. Those judgments are reversed and the cause is remanded to the circuit court of Macon County for a new trial as to counts II and III.

Who won?

The plaintiffs prevailed in their appeal against the real estate agency and its agent because the court determined that the jury should have been allowed to consider the evidence of misrepresentation.

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.

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