Atkinson v. Charlotte Builders

59 S.E.2d 1 (1950)

232 N.C. 67

ATKINSON et ux. v. CHARLOTTE BUILDERS, Inc., et al.

No. 525.

Supreme Court of North Carolina.

May 3, 1950.

Jay W. Alexander, Jr., Charlotte, for plaintiffs-appellants.

Lassiter & Moore, Charlotte, for defendants-appellees.

DEVIN, Justice.

We think the plaintiffs offered evidence, when considered in the light most favorable for them, sufficient to carry the case to the jury.

The testimony tended to show that the defendants' agent, who admittedly was acting within the scope of his employment, represented to the plaintiffs that the house, the subject of sale then being negotiated, was constructed of brick veneering, and that plaintiffs relied on this representation and were induced thereby to make the purchase, whereas in truth and in fact the house was built of what is called "speed brick"a hollow brick without air space between brick and plastera kind of structure which permits water to pass through, destructive of plaster and paint on the inside.

Defendants argue absence of evidence of scienter as ground upon which the nonsuit should be sustained. However, it is well settled that a false representation positively made by one who ought in the discharge of his duty to have known the truth and who is consciously and recklessly ignorant whether it be true or false, may be regarded as fraudulent when made to induce a sale and reasonably relied on by *2 the vendee. Modlin v. Roanoke Railroad & Nav. Co., 145 N.C. 218, 58 S.E. 1075; Whitehurst v. Life Insurance Co., 149 N.C. 273, 62 S.E. 1067; Planters' Bank & Trust Co. v. Yelverton, 185 N.C. 314, 117 S.E. 299; Stone v. Doctor's Lake Milling Co., 192 N.C. 585, 135 S.E. 449; Silver v. Skidmore, 213 N.C. 231, 195 S.E. 775; Small v. Dorsett, 223 N.C. 754, 28 S.E.2d 514. Harding v. Southern Loan & Insurance Co., 218 N.C. 129, 10 S.E.2d 599, is not controlling on the facts here presented.

Without discussing the evidence further, we think it sufficient to survive a motion for nonsuit, and that the judgment below must be

Reversed.