I would agree one hundred percent with the majority opinion in this case if the only representation made to the Oaks by Aller was that "certain improvements had been made." Under rigorous cross-examination Oaks testified that he "came to the city engineer and asked what was done there." This was the only investigation made by Oaks as disclosed by the record. The record is silent as to what if anything he found out. It is not disclosed whether this visit to the city engineer was before or after the representations were made by Aller, but the visit was made before the contract to purchase was signed. It is thus apparent that Oaks used common sense in checking to find out whether some improvements had been made, and it must be agreed that as to whether certain improvements had been made Oaks did not rely entirely upon Aller's statement.
However, the important representation made by Aller, *Page 78 who was a contractor and home builder with twenty-nine years of experience in the field, was that "the water problem had been solved," and to back up and add strength to such representation he further stated that if such lot "was in any manner, subjected to excessive collections of surface water or overflow water from Eagle Creek that defendant would refund plaintiffs the full purchase price of said real estate." These are findings of fact made by the trial court.
In my opinion this case comes squarely within the holding of the Supreme Court of Ohio in the case of Pumphrey v. Quillen,165 Ohio St. 343, which held as follows:
"1. In an action for fraudulent misrepresentation, it is not necessary for the plaintiff to allege or prove that the defendant made the representation knowing that it was false.
"2. In such an action it is not a defense for the defendant to assert that he made the representation without knowing whether it was true or false, if his statement was made under circumstances which implied knowledge on his part."
In this case it cannot be proved that the defendant Aller made the representation knowing that it was false, but in my opinion it was "made under circumstances which implied knowledge on his part." He had purchased eight lots in this addition in the summer of 1956 and immediately started building a number of residences, the first one completed and ready for sale being the one he sold to plaintiffs on February 9, 1957. He had been busily engaged working on these premises for some time. He knew what improvements had been made. He pointed out to Mr. Oaks the places at which some improvements were made. He had a personal and financial interest in the question as to whether the water problems had been solved. His statement that they had been solved was definite, unequivocal and certain.
In my opinion the record shows that the Oaks did rely upon this representation by Aller, and by reason of his long experience in this field of endeavor and his personal interest therein they had a right to rely upon such representations, and such representations were made under circumstances which implied knowledge on his part.
For these reasons I conclude that the judgment of the Common Pleas Court should be reversed. *Page 79