Silva v. Stevens

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-197


Amaro Silva and Jean Silva                   Supreme Court

                                             On Appeal From
     v.                                      Orleans Superior Court

John Stevens, Glendon McAllister and         September Term, 1990
Joyce McAllister


John P. Meaker, J.

Charles D. Hickey, St. Johnsbury, for plaintiffs-appellees

Montgomery L. Moore, Island Pond, for defendant-appellee Stevens

Rexford & Kilmartin, Newport, for defendants-appellants


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     DOOLEY, J.   Plaintiffs, Amaro and Jean Silva, purchased an earth-
sheltered home from  defendants, Glendon and Joyce McAllister, through
defendant John Stevens, a local realtor.  On finding defects in the home,
plaintiffs sued defendants for damages caused by misrepresentations made
prior to the sale.  The McAllisters appeal from a jury verdict awarding
damages against them for fraudulent misrepresentation, fraudulent
nondisclosure and negligent misrepresentation.  We affirm.  Plaintiffs cross
appeal from the trial court's grant of a motion for judgment   notwithstanding
the verdict in favor of Stevens after the jury returned a verdict holding
him liable for negligent misrepresentation.  We reverse and remand.
     In 1977, the McAllisters built and occupied an earth-sheltered home in
Coventry, Vermont.   During the seven years they lived in the home they
experienced leaks in the ceiling, moisture problems around a picture window,
and seepage around the chimney.  They also experienced difficulties with a
garage they had added in 1979.  After they had the rear wall of the garage
backfilled, the wall bowed inwards and developed cracks.  When the
McAllisters discovered the problem, they braced the wall with I-beams.
    In May 1984, the McAllisters decided to sell the home.  They contacted
Stevens, and on May 13, 1984, Stevens and the McAllisters signed a listing
agreement.  Stevens drafted an advertisement for an "open house" on June 3
at the McAllister home and ran it in a local paper.  Stevens based the
advertisement on information he obtained in conversations with Mr.
McAllister.  The advertisement stated, in part:
                              -Sale Includes-

          A 28' x 60' Earth Sheltered Home built to the strictest
          standards with 4,000 feet of steel in the roof, on 10" x
          24" footings, and 12" x 48" frost wall.  The home is
          fully insulated in and out. . . .  Also a three-car
          garage and shop with full second floor.  Functional and
          well-constructed. . . .  EVERYTHING WILL BE SOLD FOR
          JUST $64,000 - please come out and look -

It is unclear whether Mr. McAllister used the specific terms "strictest
standards" and "well constructed" in describing the property to Stevens.
    The McAllisters sent a copy of the advertisement directly to plaintiffs,
who had visited the home in the past and had asked Mr. McAllister about the
possibility of his building an earth-sheltered home for them.  Mr.
McAllister had planned to build the Silvas a home, but decided "we might as
well sell [them] this one."
     Plaintiffs received the ad and thought that the home "sounded good," so
they called the McAllisters.  They agreed on a sales price of $60,000.  On
June 9, plaintiffs drove to Coventry and were shown around the property by
the McAllisters.  During the visit, Mr. McAllister told plaintiffs that
there had been a leakage problem with the skylight and the chimney in the
past, but that he had repaired the problem.  Mr. McAllister also showed Mr.
Silva the garage and told him that the I-beams were there to reinforce the
rear wall.  Mr. Silva apparently accepted these explanations and did not
inquire further.  In response to a question from Mrs. Silva, Joyce
McAllister said that they did not have any dampness problems with the home.
     Immediately after the visit, plaintiffs and the McAllisters went to
Stevens' office.  Plaintiffs had brought a check for $5,000 as a deposit.
Stevens offered to show them the property, but they declined.  Stevens had
the parties sign a sales agreement which included a provision that "[t]he
property and furnishings and appliances are sold as is and no representation
has been made by the broker regarding the age or condition of the same."
The parties differ as to whether plaintiffs were aware of, or whether the
parties ever discussed, this language.
    The sale was closed on August 31, 1984, and plaintiffs' daughter and her
family took occupancy the following day.  Within two months they began to
have difficulties.  They discovered mold in closets, rot beneath carpeting,
and leaks in the middle bedroom ceiling, around the skylight, and around the
chimney.  They found water pooling in the garage, and found that the rear
wall of the garage had cracked and bowed in until it put pressure on the I-
beams.
    Plaintiffs hired an architect, Don Metz, to inspect the home.  Metz
determined that the roof of the home was improperly sealed and was,
therefore, not waterproof; there was insufficient insulation; there was
inadequate ventilation to provide for air exchange; and there were no
secondary exits for escape in case of fire.  He also determined that the
rear wall of the garage was not designed to support the weight pressing
against it from backfill.  Plaintiffs hired local contractors to repair the
roof of the home and to repair the garage.  They also had an air exchanger
installed.
    In 1985, plaintiffs brought suit against defendants McAllister and
Stevens.  The complaint, as eventually amended, alleged that the
representations in the advertisement that the home was built to the
"strictest standards" and that the garage was "well constructed" were
false, had been made fraudulently, and were relied upon by plaintiffs.
Plaintiffs sought compensatory and punitive damages based on the fraud.
Plaintiffs also alleged that the misrepresentations were made in a careless
and negligent manner and sought damages for this negligence.  In two
additional counts, plaintiffs alleged that the McAllisters had stated that
they had fixed a roof leak prior to closing, when they had not, and that a
suspended ceiling had been erected to fraudulently conceal the actual
condition of the roof.  Damages were sought under each of these counts.
     Defendants were granted a directed verdict on the fraudulent
concealment count at the close of the plaintiffs' case.  The trial was
lengthy, extending over a month.  The court charged the jury on three
"counts," each based on a separate theory of recovery:  (1) fraud based on
fraudulent misrepresentations; (2) fraud based on fraudulent nondisclosure;
and (3) negligent misrepresentation.  The court drafted a set of special
interrogatories to present the issues to the jury.  For each of the three
counts, the court asked whether the jury found each of the defendants
guilty.  However, for the second count of fraudulent nondisclosure, the
interrogatories allowed the jury to find liability only for Glendon
McAllister and Joyce McAllister.  Two additional interrogatories asked the
jury to specify the amount of plaintiffs' recovery for compensatory and
punitive damages if the jury found liability with respect to any defendant
on any count.
     The jury returned a verdict against the McAllisters on all three
counts, and against Stevens on the claim of negligent misrepresentation.
The jury assessed compensatory damages at $21,000 and punitive damages at
$15,000.
    The trial court denied all post-verdict motions filed by the
McAllisters, but granted Stevens' motion for judgment notwithstanding the
verdict.  The trial court found that the "as is" clause in the sales
contract established an affirmative defense for Stevens to the negligent
misrepresentation claim.
    The McAllisters' appeal raises the following issues:  (1) whether the
trial court erred in failing to grant the McAllisters' motion for a directed
verdict; (2) whether the trial court erred in its charge and interrogatories
to the jury; (3) whether liability on the negligent misrepresentation theory
was barred by the "as is" clause in the listing agreement; (4) whether an
evidentiary ruling or the comment of a court officer to a juror warrant a
new trial; and (5) whether the jury's answers to the interrogatories are
internally inconsistent.  Plaintiffs' cross-appeal contests the grant of the
judgment notwithstanding the verdict in favor of Stevens on the claim for
negligent misrepresentation.  In the following discussion, we refer to the
McAllisters as "defendants" and to Stevens by name.
                                    I.
     Defendants first contest the trial court's refusal to grant them a
directed verdict on all three counts.  They argue that there was
insufficient evidence to reach the jury on most of the elements of the
counts.
     In reviewing a trial court's denial of a directed verdict, this Court
will view the evidence in the light most favorable to the nonmoving party,
excluding the effect of any modifying evidence.  Cushman v. Kirby, 148 Vt.
571, 574, 536 A.2d 550, 552 (1987).  "If there is any evidence fairly and
reasonably supporting the nonmoving party's claim, the case should go to the
jury, and a directed verdict would be improper."  Lussier v. North Troy
Engineering Co., 149 Vt. 486, 490, 544 A.2d 1173, 1176 (1988).
     The elements of fraud or intentional misrepresentation are set forth in
Union Bank v. Jones, 138 Vt. 115, 121, 411 A.2d 1338, 1342 (1980) as
follows:
            An action for fraud and deceit will lie upon an inten-
          tional misrepresentation of existing fact, affecting the
          essence of the transaction, so long as the misrepresen-
          tation was false when made and known to be false by the
          maker, was not open to the defrauded party's knowledge,
          and was relied on by the defrauded party to his damage.

See also Quintin v. Miller, 138 Vt. 487, 489, 417 A.2d 941, 943 (1980).
     Taken in the light most favorable to plaintiffs, there was evidence
presented at trial that the McAllisters made several representations of fact
relating to the condition of the home in the open-house advertisement. (FN1)
There was evidence that the representations were false and that the
McAllisters knew they were false, including the testimony by the architect
Metz, the testimony that persistent leaks had returned, and the testimony
that the I-beams were installed when the garage wall started to bow and
crack.  There was evidence that the representations were made to induce
plaintiffs to enter the contract, including the testimony that the
McAllisters sent the advertisement directly to the Silvas and Mrs.
McAllister's testimony that "You don't say anything unless you are asked."
Further, there was evidence that the true condition of the premises was not
open to the Silvas' knowledge.  Finally, the claim that plaintiffs relied
upon these representations in entering into the contract and that this
reliance resulted in their damages, is supported by testimony of Mr. Silva
that he accepted the advertisement claims and that he relied on Mr.
McAllister's knowledge of earth-sheltered homes. (FN2)
     Likewise, there was adequate evidentiary support for the fraudulent
nondisclosure count.  We have set forth the elements of fraudulent
nondisclosure, or fraudulent concealment, in a number of recent cases.  See,
e.g., White v. Pepin, 151 Vt. 413, 416, 561 A.2d 94, 96 (1989); Sutfin v.
Southworth, 149 Vt. 67, 70, 539 A.2d 986, 988 (1987); Cushman, 148 Vt. at
574, 536 A.2d  at 552.  Fraudulent concealment involves concealment of facts
by one with knowledge, or the means of knowledge, and a duty to disclose,
coupled with an intention to mislead or defraud.  White, 151 Vt. at 416, 561 A.2d  at 96 .  Plaintiffs' theory was that defendants' failure to disclose
the history of water leaks and their inability to repair them, and the
denial that the house had a dampness problem, constituted intentional
concealment.  Upon review of the record, we conclude that there was ample
evidence to support the jury's finding of fraudulent nondisclosure.
     Defendants contest, however, that they had any duty to disclose the
withheld information in this "arm's-length" transaction.  A duty "aris[es]
from the relations of the parties, such as that of trust or confidence, or
superior knowledge or means of knowledge."  Id.  We have found that the duty
to speak based on superior knowledge can arise for a seller of a home.
Cushman, 148 Vt. at 575, 536 A.2d  at 552-53.  We explained that such a duty
would arise "'[w]here material facts are accessible to the vendor only, and
he knows them not to be within the reach of the diligent attention,
observation and judgment of the purchaser.'"  Id. at 576, 536 A.2d  at 553
(quoting Lawson v. Citizens & Southern Nat'l Bank, 259 S.C. 477, 485, 193 S.E.2d 124, 128 (1972)).  The jury could find the requisite superior
knowledge here where the material facts were largely historical and
plaintiffs had limited ability to determine them. (FN3) We also emphasize that
this is a partial disclosure case, like that analyzed in Crompton v. Beedle,
83 Vt. 287, 298, 75 A. 331, 334-35 (1910).  See White, 151 Vt. at 417, 561 A.2d  at 96 (quoting Crompton); Cushman, 148 Vt. at 574, 536 A.2d  at 552
(same).  Thus, defendants' partial disclosure that leaks had been present,
but were repaired, could be found to be actionable fraud under the Crompton
standard even absent a special duty to disclose the remaining information.
     Defendants raise a number of specific arguments in support of the claim
that their directed verdict motion should have been granted.  First,
defendant Joyce McAllister argues that there was insufficient evidence to
find her liable for fraud or negligent misrepresentation even if there was
enough evidence with respect to her husband.  We have found no liability
against a wife in a property sales case where "[t]here is no finding nor is
there evidence that [defendant wife] had actual knowledge of the problem or
participated in the concealment."  Sutfin, 149 Vt. at 71, 539 A.2d  at 988;
see also Quintin v. Miller, 138 Vt. at 490, 417 A.2d  at 493 (where husband
fraudulently concealed information to induce insurance company to extend
coverage, wife not liable since she did not engage in any misrepresenta-
tion); The jury could find in this case that Joyce McAllister participated
in the decision to send the advertisement to plaintiffs and that she
participated in the concealment.  There is no ground to separate her from
her husband for purposes of the directed verdict motion.
     Defendants next argue that plaintiffs were negligent in failing to
discover the falsity of the representations or concealments as a matter of
law and are barred from recovery under Vezina v. Souliere, 103 Vt. 190,
194, 152 A. 798, 800 (1931) (recovery barred where "a vendee has [not] used
the care and diligence required of him . . . in determining the falsity of
the representations").  Contrary to defendants' suggestion, however,
negligence on the part of plaintiffs is not an absolute defense to
fraudulent misrepresentation. (FN4) We have emphasized that it is not a defense
that "'plaintiff might, but for his own neglect, have discovered the wrong .
. . .'"  White, 151 Vt. at 420, 561 A.2d  at 98 (quoting Lunnie v. Gadapee,
116 Vt. 261, 265, 73 A.2d 312, 315 (1950)); see also Negyessy v. Strong, 136
Vt. 193, 195, 388 A.2d 383, 85 (1978) (per curiam).  Nevertheless, we have
held that "where it is clear from the full text of a representation or from
the facts about the relationship of the parties that reliance should only
follow an independent inquiry," such an inquiry must be made.  Winton v.
Johnson & Dix Fuel Corp., 147 Vt. 236, 241, 515 A.2d 371, 374 (1986)
(misrepresentation claim under Vermont Consumer Fraud Act).  Although
defendants have an argument that independent inquiry was required here, it
is no ground to grant a directed verdict. (FN5)
     Next, defendants argue that they should have received a directed
verdict on the fraudulent concealment count because plaintiffs failed to
plead the specifics of this theory of recovery.  Defendants rely on
V.R.C.P. 9(b), which requires that when fraud is alleged "the circumstances
constituting fraud . . . shall be stated with particularity."  The rule
requires that the facts and circumstances sufficient to satisfy all of the
elements of fraud be specifically pled.  Cheever, 138 Vt. at 570, 421 A.2d 
at 1289; 5 C. Wright & A. Miller, Federal Practice and Procedure:  Civil 2d
{ 1297, at 590 (1990).
     Rule 9(b), however, is subject to the liberal amendment provisions of
V.R.C.P. 15.  See 5 C. Wright & A. Miller, supra, { 1300, at 661 (addressing
identical federal rule).  Under V.R.C.P. 15(b), "[w]hen issues not raised by
the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the
pleadings."  The situation here is somewhat unusual because the express
fraudulent concealment count in plaintiffs' original complaint was dismissed
on defendants' motion for a directed verdict.  At trial, defendants failed
to object to the introduction of evidence of their concealment of material
facts, thereby impliedly consenting to trial of these issues.  In addition,
the court charged the jury that they could find fraudulent nondisclosure,
that is, fraudulent concealment, and defendants did not object to that part
of the charge. (FN6) The evidence was admitted and was properly considered by
the jury.  Although we are not privy to the exact reasoning of the court, it
must have treated the pleadings as if they had raised these issues.  See,
e.g., Lemnah v. American Breeders Service, Inc., 144 Vt. 568, 577-78, 482 A.2d 700, 705-06 (1984); Valsangiacomo v. Paige & Campbell, Inc., 136 Vt.
278, 280, 388 A.2d 389, 391 (1978).  Moreover, one of the primary objectives
of Rule 9(b) is to provide the defendant with sufficient information to
enable him or her to effectively prepare a response.  See 5 C. Wright & A.
Miller, supra, { 1296, at 580.  This objective was satisfied here, as the
pleadings otherwise complied with the Rule by specifying the elements of
plaintiffs' fraudulent misrepresentation theory.
     Finally, defendants argue that the jury's exoneration of Stevens on the
fraudulent misrepresentation count required the trial court to render a
directed verdict for them on this count.  Defendants fail to recognize that
different standards apply to the liability of themselves, as sellers, and to
Stevens, as the broker.  This Court has held that "a real estate broker is
not guilty of fraud for making untrue statements to a buyer based upon
information supplied by the seller, if the broker did not know the
information was untrue."  Provost v. Miller, 144 Vt. 67, 69, 473 A.2d 1162,
1163-64 (1984); see also Cunningham v. Miller, 150 Vt. 263, 266, 552 A.2d 1203, 1205 (1988).  On the other hand, a seller is responsible for the
representations of his or her broker made within the scope of the broker's
selling authority.  See Denlinger v. Mudgett, 151 Vt. 208, 209, 559 A.2d 661, 662 (1989).
     Viewing the evidence in the light most favorable to plaintiff, a
reasonable jury could have found that Stevens received the information he
used in the advertisement from the McAllisters, and that he neither knew,
nor had reason to know, that the information was untrue.  They further could
find that he acted within his authority in preparing the advertisement and
that defendants were aware of its terms when they sent it to plaintiffs.
There is no inconsistency in the verdicts.
                                   II.
     Defendants next attack the jury instructions and interrogatories.
They first assert error in the failure of the instructions to specify the
statements plaintiffs claimed as misrepresentations and the nondisclosures
that were claimed to form the basis of the fraudulent concealment count.
With respect to this argument, defendants did object to the instructions on
the fraudulent and negligent misrepresentation counts.  They did not make an
objection to the instructions on the fraudulent concealment count.  Thus,
they have waived any objection to the fraudulent concealment instructions.
V.R.C.P. 51(b); see United Railway Supply & Service, Ltd. v. Boston & Maine
Corp., 148 Vt. 454, 457, 535 A.2d 325, 326 (1987).
     The misrepresentation instructions failed to specify plaintiffs' theory
of the case or the factual claims supporting it.  They bordered on the type
of abstract instructions on the law which this Court has found unacceptable
in the past.  See In re Estate of Brown, 114 Vt. 380, 382, 45 A.2d 568, 569
(1946) (affirming trial court's refusal to adopt proposed instructions:
"[A]bstract instructions are condemned, for the reason that they are quite
as apt to confuse the jury as to clarify their minds . . . .").  On the
other hand, "[i]t is not error if the court does not make every conceivable
comment that could be made on the issues and evidence.  How far the court
must elaborate lies within the sound exercise of its discretion."  Turgeon
v. Schneider, 150 Vt. 268, 276, 553 A.2d 548, 553 (1988).  Further, "[a]
party claiming error in jury instructions must establish not only that they
were erroneous but that prejudice resulted."  Id.
     While it would have been preferable for the trial court to specify
plaintiffs' theory of misrepresentation, and we might find error in another
context for failing to do so, there was no prejudice demonstrated here.
Plaintiffs' theory of the case was clear from the beginning and was never
changed or expanded.  In their closing argument, plaintiffs argued only from
the statements in the advertisement.  We think the jury was well aware of
plaintiffs' claims and was not confused by the failure to state them more
clearly in the instructions.
     Defendants also objected to the charge on the negligent misrepresen-
tation count, claiming error on the issue of whether plaintiffs justifiably
relied on the representations.  Defendants argue that the trial court should
have instructed the jury that a reasonable person standard was to be applied
in determining justifiable reliance.  The tort of negligent misrepresent-
ation requires that the plaintiff show "justifiable reliance upon the
information" provided by the alleged tortfeasor.  Restatement (Second) Torts
{ 552(1) (1977).  We agree that "justifiable reliance" connotes an objective
standard.  See id., comment a.  The trial court instructed the jury
"[p]laintiffs may justifiably rely upon a representation when the
representation is not obviously false and the truth of the representation is
not within the knowledge of, or known by the plaintiffs."  This instruction
was adequate on the issue of justifiable reliance and it was within the
trial court's discretion to decide whether to elaborate. (FN7) There was no
error.
     Defendants' next claim deals with the interrogatories and the absence
of a general verdict.  As discussed above, the interrogatories asked the
jury to specify for each theory whether each defendant was liable.  Since
there were three defendants and three theories, that would normally involve
nine liability interrogatories.  However, because the court determined that
Stevens could not be found liable on the theory of fraudulent nondisclosure,
there were only eight.  These liability interrogatories were followed by two
damage interrogatories, to be answered only if the jury found liability on
any of the theories against any of the defendants.  The first asked the jury
to specify the sum necessary to "fairly and reasonably compensate these
plaintiffs for their damages."  The second asked the jury to specify its
award of punitive damages, if any.  There were no general
verdicts.
     The jury found liability with respect to each defendant on each
applicable count except that it did not find Stevens liable for fraudulent
misrepresentation.  It found that plaintiffs were entitled to $21,000 in
compensatory damages and $15,000 in punitive damages.
     The interrogatories were reviewed by the parties, and no objection was
made to them.  The rendering of the verdict consisted of the foreman's
reading of the interrogatory answers.  Following that reading, counsel were
asked if they had anything further.  Defendants asked for a polling of the
jury but did not object to the form of the verdict.
     Defendants' position here is that the failure to include a general
verdict with the interrogatories violated V.R.C.P. 49(b).  We agree that the
interrogatories do not comply with V.R.C.P. 49(b) because they are not
accompanied by a general verdict as required by that rule.  If we assess
their adequacy under V.R.C.P. 49(a), which does not require a general
verdict, see Simien v. S.S. Kresge Co., 566 F.2d 551, 556 (5th Cir. 1978)
(where special interrogatories were unaccompanied by general verdict form,
validity determined under Fed.R.Civ.P. 49(a) (which is identical to Vermont
rule)), they do not comply because they do not require a "special written
finding upon each issue of fact."  Although we agree that the verdict here
does not comply with Rule 49, we believe that defendants waived the issue by
failing to object before the jury was discharged.
     Generally, objections to verdict forms must be presented to the trial
court in time to allow an opportunity to take corrective action.  See
Mainieri v. McLellan, 125 Vt. 157, 158, 211 A.2d 239, 240 (1965) (per
curiam).  Similarly, errors in interrogatories can be raised here only if
the party claiming error seasonably objects before the trial court.
Hartnett v. Union Mutual Fire Ins. Co., 153 Vt. 152, 159-60, 569 A.2d 486,
489-91 (1989); V.R.C.P. 51(b).  We think these principles required
defendants to object to the absence of a general verdict while the trial
court still had an opportunity to correct the error.
     In reaching this conclusion, we are aware that Rule 49 provides at
least two avenues for the trial court to render judgment despite the
absence of a general verdict.  Where interrogatory responses are consistent,
as here, the Rule 49(b) allows entry of judgment in accordance with the
answers to the interrogatories even if the general verdict is inconsistent
with those answers.  A similar remedy should be available where the general
verdict is missing.  As an alternative, Rule 49(a) allows the court to treat
the failure of a party to object to the omission of a factual issue from
special interrogatories as a waiver of trial by jury with respect to that
issue.  Thus, the court is allowed to make any finding necessary to allow
the issuance of a judgment.
                                   III.
     Defendants' next claim is that the "as is" clause in the sales contract
was a complete defense to liability on the negligent misrepresentation claim
and, in any event, the trial court was required to grant a judgment
notwithstanding the verdict (j.n.o.v.) for them on this theory when it
granted a j.n.o.v. for Stevens.  This argument is considered below in
connection with plaintiffs' cross-appeal against Stevens.  Since we find
that the trial court was in error in granting Stevens a j.n.o.v., there was
no error in denying judgment to defendants on the basis of the "as is"
clause.
                                    IV.
     Finally, defendants argue that they should have been granted a new
trial based on an evidentiary error and on a communication to a juror by a
court officer.  The asserted evidentiary error involved the trial court's
exclusion of a letter written by an attorney for plaintiffs, and its refusal
to allow examination of the recipient of the letter, an attorney for
defendants, as to its contents.
     The letter at issue is dated September 12, 1984, twelve days after the
closing on the home, and concerned requests that the McAllisters had made,
after the closing, concerning maintenance of the home.  It also mentioned
that the windows of the home were not triple glazed, as they had been
described in the sales contract.  The trial court ruled that the contents of
the letter were not relevant and barred from evidence the letter and
testimony as to its contents.
     "The decision to admit evidence lies within the sound discretion of the
trial court and will not be overturned on appeal absent a showing of an
abuse of that discretion, or a showing that the court's discretion was
unjustly withheld."  State v. Bushey, 149 Vt. 378, 380, 543 A.2d 1327, 1328
(1988).  The letter was marginally relevant, at best, and it was within the
court's discretion to exclude it.
     Defendants' second ground for a new trial is that a statement made by
a court officer to a juror was prejudicial.  The remark was made to one of
the jurors after the jury left the courtroom to begin deliberations.
According to defendants, a juror had asked the court officer if the jury
could find Mrs. McAllister liable but not find Mr. McAllister liable and the
officer responded:  "They own all the property together."  The court
questioned the officer, who denied making the statement.  The officer stated
that he told the juror "you will have to go with the rest of the group in
believing something."  The court then recalled the jury and told them to
ignore the remark.  This was done without objection from any of the parties.
Since defendants failed to object to the court's curative instruction at
trial, it is not preserved on appeal.  See State v. Bartlett, 137 Vt. 400,
404, 407 A.2d 163, 165-66 (1979) (claim of error based on misconduct of
court officer raised for first time in post-trial motions).
                                    V.
    Plaintiffs cross appeal from the trial court's grant of a j.n.o.v. in
favor of defendant Stevens.  The trial court ruled that the "as is" clause
contained in the contract for sale provided Stevens with an affirmative
defense to plaintiffs' claim for negligent misrepresentation.  The clause
provided that "[t]he property and furnishings and appliances are sold as is
and no representation has been made by the broker regarding the age or
condition of the same."
     In support of its holding, the trial court relied on Lamoille Grain
Co. v. St.J. & L.C. RR., 135 Vt. 5, 369 A.2d 1389 (1976).  In Lamoille Grain
Co., this Court upheld language in an indemnity clause of a contract which
purported to excuse a railroad from any liability for damage, injury or loss
caused by the railroad.  Id. at 7, 369 A.2d  at 1390.  We stated that
"[w]here the language of the agreement is clear, the intention and
understanding of the parties must be taken to be that which their agreement
declares." Id. at 8, 369 A.2d  at 1390.  We concluded that the language of
the contract was "sufficiently clear to show the parties intent that the
railroad be held harmless for damages caused by its own negligence".  Id.
     We do not believe that the holding of Lamoille Grain Co. governs this
case.  The term "as is" is language which in "common understanding" means
that there are no implied warranties in connection with the property sold.
Cf. 9A V.S.A. { 2-316(3)(a) (exclusion or modification of warranties with
respect to sales of goods).  It does not denote an exclusion of tort
liability.  See Kopischke v. First Continental Corp., 187 Mont. 471, 484-85,
610 P.2d 668, 675 (1980).  Indeed, it does not address tort liability at
all.  Consistent with that view, the law is clear that the presence of an
"as is" clause in a sales contract does not as a matter of law defeat a
fraud claim.  See Slater v. KFC Corp., 621 F.2d 932, 935 (8th Cir. 1980)
(Missouri law); L. Luria & Son, Inc. v. Honeywell, Inc., 460 So. 2d 521, 523
(Fla. Dist. Ct. App. 1984); Bill Spreen Toyota, Inc. v. Jenquin, 169 Ga.
App. 855, 856, 294 S.E.2d 533, 536 (1982) (en banc); Moore v. Swanson, 171
Mont. 160, 166-67, 556 P.2d 1249, 1253 (1976); MacFarlane v. Manly, 274 S.C.
392, 395, 264 S.E.2d 838, 840 (1980).  The same principle applies if the
claim is based on negligence or strict liability.  See Badger Bearing Co. v.
Burroughs Corp., 444 F. Supp. 919, 923 (E.D. Wis. 1977), aff'd, 588 F.2d 838
(7th Cir. 1978) (negligent misrepresentation); see also Vicon, Inc. v. CMI
Corp., 657 F.2d 768, 775 (5th Cir. 1981) (tortious misrepresentation without
intent or negligence; Tennessee law); Archuleta v. Kopp, 90 N.M. 273, 275,
562 P.2d 834, 836 (N.M. Ct. App.) (innocent misrepresentation), cert.
denied, 90 N.M. 636, 567 P.2d 485 (1977).
     We accept that the presence of the "as is" clause in the contract is
relevant to whether Stevens made misrepresentations and to whether
plaintiffs reasonably relied on them.  However, when we review the grant of
a j.n.o.v. motion under V.R.C.P. 50(b), we must view the evidence in the
light most favorable to the nonmoving party, excluding the effect of any
modifying evidence.  If any evidence was produced at trial which fairly and
reasonably supports the nonmoving party's claim, the grant of a j.n.o.v. is
improper.  Kinzer v. Degler Corp., 145 Vt. 410, 412-13, 491 A.2d 1017, 1018-
19 (1985).
     The jury in this case was fully charged on the elements of negligent
misrepresentation and on plaintiffs' burden to show that Stevens misrep-
resented the condition of the house and garage and that plaintiff reasonably
relied on Stevens' misrepresentations.   The "as is" language was contained
in the contract for sale prepared well after the advertisement on which
plaintiffs relied and after plaintiffs had decided to purchase the house.
There was some dispute as to whether plaintiffs even saw the language.  In
sum, the jury could have found the clause irrelevant to the question of
justifiable reliance.  Further, the jury could have attempted to reconcile
the specific language of the advertisement and the clause in the contract.
Cf. 9A V.S.A. { 2-316(1) (words creating express warranty and words "tending
to negate or limit warranty shall be construed wherever reasonable as
consistent with each other").  In reconciling the language, it is important
to note that if the contract language "no representation has been made by
the broker regarding the . . . condition of the [property]" applies to the
advertisement, it is at variance with the undisputed facts.
     The trial court was in error.  The presence of the "as is" clause in
the sales contract did not justify a j.n.o.v. in favor of Stevens as a
matter of law.  Since it did not warrant a judgment for Stevens, it is
likewise of no assistance to the McAllisters.
     The judgment notwithstanding the verdict granted to defendant Stevens
is reversed and the judgment against Stevens reinstated.  In all other
respects, the case is affirmed.


                                        FOR THE COURT:




                                        Associate Justice






FN1.    Defendants have not contested that the representations that the home
was built to "strictest standards" and the garage was "well constructed"
could be taken by the jury to be statements of fact rather than opinion.
The question of whether a statement is one of fact or opinion is for the
jury to determine.  See Hughes v. Holt, 140 Vt. 38, 41, 435 A.2d 687, 689
(1981) (evidence sufficient for jury to find that representation that house
was in "excellent" condition was one of fact).

FN2.    Our conclusion on the intentional misrepresentation count also means
there was adequate evidence to support each element of the negligent
misrepresentation claim.  See Restatement (Second) of Torts { 552(1) (1977)
(outlining elements of negligent misrepresentation).  We have, therefore,
not discussed this count.

FN3.    The trial court did grant a directed verdict on the alleged claim
that the placement of a suspended ceiling, which made it difficult to
examine the inside of the roof, was a fraudulent concealment.  Despite the
court's disposition of this count, the court and jury could consider the
presence of the suspended ceiling as evidence of plaintiffs' inability to
observe the defects in the roof.

FN4.    As discussed at note 7, infra, defendants attempted to raise
plaintiffs' negligence as a defense to their negligent misrepresentation
claim.  The court refused to allow the jury to consider this defense because
it had not been pled.  Defendants have not appealed this ruling.

FN5.    As discussed above, there is generally a duty of "diligent
attention, observation and judgment" as a prerequisite to a fraudulent
concealment claim.  Cushman, 148 Vt. at 576, 536 A.2d  at 553.  Relying on
Cheever v. Albro, 138 Vt. 566, 572, 421 A.2d 1287, 1290 (1980), we stated in
White, 151 Vt. at 420, 561 A.2d  at 98, that the concealed information must
be unavailable in the exercise of due diligence.  Based on the evidence
presented in the case at hand, we cannot say as a matter of law that
evidence of due diligence was lacking.

FN6.    Defendants have supplied us with only a partial transcript of the
charge conference. In the part that was transcribed, defendants were given
the opportunity to object to the proposed charge and did so.  They objected,
however, only to the fraudulent and negligent misrepresentation counts, and
not to the concealment count.  Their further objection after the charge was
also related to those counts only.

FN7.    The trial court concluded that in making this objection, defendants
were trying to raise a defense of plaintiffs' contributory negligence.  12
V.S.A. { 1036; Restatement (Second) Torts { 552A (1977) (contributory
negligence is a defense to negligent misrepresentation).  The court ruled
that contributory negligence had not been pled, and, therefore, could not be
submitted to the jury.  See V.R.C.P. 8(c) (affirmative defenses must be
specifically pled).  Defendants have not appealed that decision.