Section 8.5 Generally

• Library: Tort Law 2016

1. (§8.5) Generally

A defendant’s misrepresentation does not need to be made directly to the plaintiff if the defendant intended or expected that the substance of the misrepresentation would be repeated or communicated to the plaintiff, and would "influence [the plaintiff’s] conduct in the transaction." Freeman v. Myers, 774 S.W.2d 892, 894 (Mo. App. W.D. 1989) (adopting and quoting RESTATEMENT (SECOND) OF TORTS § 533 (1977)); see also Pelster v. Ray, 987 F.2d 514, 523 (8^th Cir. 1993) (applying Missouri law).

In most instances, a representation consists of an affirmative statement made orally or in writing. See, e.g., Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483 (Mo. banc 1966) (a billboard advertisement representing that a subdivision was connected to a state-approved and adequate water source constituted a misrepresentation when the water supply was neither state-approved nor adequate).

Conduct alone may also constitute a representation actionable as fraud. See, e.g.:

· Haberstick v. Gordon A. Gundaker Real Estate Co., 921 S.W.2d 104, 109 (Mo. App. E.D. 1996) (quoting Bedell v. Daugherty, 242 S.W.2d 572, 575 (Mo. 1951)) ("A misrepresentation may be made by conduct calculated to mislead and to fraudulently obtain an undue advantage.")

· Hutchings v. Tipsword, 363 S.W.2d 40, 46 (Mo. App. E.D. 1962) (a defendant’s act of preparation and delivery of a stock certificate to the plaintiff was an implied representation that it was a valid instrument)

Under certain circumstances, even the mere act of contracting may constitute an implied representation of the existence or nonexistence of facts that, if false, may serve as the basis for a fraud claim. See, e.g., id.

Silence or the failure to disclose a material matter can also amount to an actionable representation if a defendant was under a legal duty to disclose that matter. SeeHarris v. Mid-W. Egg Donation, LLC, 365 S.W.3d 274, 277 (Mo. App. E.D. 2012) ("In...