Fraudulent Misrepresentation

 

223 S.W.3d 858, 863

Bohac v. Walsh

Mo. App. E.D. 2007

 

The petition fails to state a claim for fraudulent misrepresentation. The only representation alleged [**11]  is that one defendant, Mr. Walsh, told plaintiff that if she did not sign the guaranty, Mr. Akbani would go to jail. 3 The petition fails to allege that any defendant other than Mr. Walsh made or authorized this representation, and thus fails to even attempt to make a claim against any defendant other than Mr. Walsh. See Hanrahan v. Nashua Corp., 752 S.W.2d 878, 883 (Mo.App. 1988). Further, the petition does not state a claim for fraudulent misrepresentation against any defendant, including Mr. Walsh, because it fails to allege 1) that the representation was false, Arnold, 934 S.W.2d at 627, or 2) that the speaker knew it was false. Wieners v. Miller, 683 S.W.2d 659, 661 (Mo.App. 1984). In addition, the petition alleges plaintiff's lack of knowledge, reliance, and right to rely solely as conclusions, without any supporting facts. Thus, the petition fails to set forth the elements of fraudulent misrepresentation with the required particularity against any defendant. See Custom Craft Tile, Inc. v. Bridgecrest, 662 S.W.2d 320, 322 (Mo.App. 1983).

 

Hackett v. St. Joseph Light & Power Co., 761 S.W.2d 206,209-210

Mo. App. W.D. 1988

 

To make a submissible case of fraudulent misrepresentation a party must show: (1) a false, material representation; (2) the speaker's knowledge of its falsity or his ignorance of its truth; (3) the speaker's intent that it should be acted upon by the hearer in the manner reasonably contemplated;  [*210]  (4) the hearer's ignorance of the falsity of the statement; (5) the hearer's reliance on its truth, and the right to rely thereon; and (6) proximate injury. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987). The establishment of each of these elements is necessary for recovery, and failure to establish any one element is fatal. Fredrick v. Bensen Aircraft Corporation, 436 [**8]  S.W.2d 765 (Mo. App. 1968).

 

----------------

 

Fraud

 

Kestner v. Jakobe, 446 S.W.2d 188, 193

Mo. App. Springfield Dist. 1969

 

The elements of actionable fraud have been variously stated, but in general they are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon. The party having the burden of proof is entitled to have the evidence considered in the light most favorable to him, but so viewed, his evidence must establish each of the essential elements of fraud or he cannot prevail.  More Like This Headnote | Shepardize: Restrict By Headnote

 

 

-------------------

 

Wrongful Inducement

 

Check Black’s.  Is this a legal term?

 

---------------------

 

Fraudulent Inducement

 

 

Kestner v. Jakobe, 446 S.W.2d 188, 195

Mo. App. Springfield Dist. 1969

 

Parties are not entitled to rely on representations of agents and others, absent some confidential relationship or fraudulent inducement tending to convince the releasor that he need not make an independent investigation of the facts. To establish a "confidential relationship," there must be evidence of a special trust with respect to the property or business under consideration, even though the relations between the parties may be informal.

 

-------------

 

Duress

 

Wood v. Kansas City Home Tel. Co., 223 Mo. 537, 557

Mo. 1909

 

By the common law duress was divided into two classes, (1) duress by imprisonment and (2) duress per minas. [9 Cyc., p. 444.] Of the latter class are such Missouri cases as Lacks v. Bank, 204 Mo. 455, 102 S.W. 1007, and Hensinger v. Dyer, 147 Mo. 219, 48 S.W. 912. The class is thus defined by the same authority at page 445: "Duress per minas arises when a person (1) is threatened with loss of life, (2) is threatened with loss of limb, (3) is threatened with mayhem, or (4) is threatened with imprisonment, and only in these cases at common law."

 

 

Mississippi Valley Trust Co. v. Begley, 298 Mo. 684

Mo. 1923

 

 [*698]  sufficiency of facts to produce duress. The question in each case is,  [***21]  Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained? Duress then, according to this class of cases, includes that condition of mind produced by the wrongful conduct of another, rendering a person incompetent to contract with the exercise of his free will power

 

[698] Duress by mere advice, direction, influence, and persuasion is not recognized in law. Nor can a charge of legal duress be predicated upon a threat to injure one's credit, to withhold payment of a debt, to refuse performance of a contract, or to foreclose or exercise the power of sale on a mortgage; a threat of arrest or arrest on civil process on a legal claim, when such arrest is allowed by law; or a threat of, or the bringing of, a lawsuit or civil process.  More Like This Headnote 

 

--------------------

 

Gift

 

Schultz v. Schultz, 637 S.W.2d 1, 6, Mo. 1982

 

A person claiming a gift has the burden of proving the gift by clear and convincing evidence. In re Petersen's Estate, 295 S.W.2d 144, 150 (Mo. 1956). The elements of a gift are "a present intent to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee . . . ."