concurring in part and dissenting in part:
The majority opinion agrees that the pleadings limit this action to an “innocent misrepresentation” in the context of a careless statement made without knowledge. I cannot agree that either the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud) or the Uniform Deceptive Trade Practices Act (Deceptive Practices) is properly applicable to such a transaction. In plain language, a single “innocent misrepresentation” is not a “practice” in the sense of a “repeated or customary action” or “the usual way of doing something.” Webster’s Seventh New Collegiate Dictionary.
Section 2 of the Consumer Fraud Act (Ill. Rev. Stat. 1979, ch. 121*2, par. 262) is stated as:
“[U]nfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, * * *."
Upon the face of the expressions employed, i.e., deception, fraud, false pretense and concealment, the language of the statute expressly contemplates a mental state. This court has stated as much in Scott v. Association for Childbirth at Home, International (1980), 85 Ill. App. 3d 311, 318,407 N.E.2d 71, 76. Reviewing the words employed in this act, the court stated:
“It is noteworthy that conduct characterized by the latter words usually involves a mens re upon the part of the actor, while no wrongful intent or knowledge by the actor is necessary for conduct to produce a result which can be deemed to be ‘unfair.’ In Colautti, the court ruled legislation subjecting physicians to criminal liability for performing abortions upon viable fetuses under certain circumstances to be void for vagueness. The court noted that the lack of a definite mens re requirement in a prohibitory statute compounds its problems of clarity.” 85 Ill. App. 3d 311, 318.
The conduct alleged in this complaint obviously does not come within the conduct specifically described in the Consumer Fraud Act, sections 262A through 262N. (Ill. Rev. Stat. 1979, ch. 121½, pars. 262A through 262N.) Section 2 of the Consumer Fraud Act undertakes to incorporate the use or employment of any practice described in the Deceptive Practices Act. It is fairly to be said that the complaint does not allege any “practice” on the part of the defendant.
By its language, section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1979, ch. 121M, par. 312) in subparagraphs 1 through 11 are directed to supplying goods and services and there is no contention that they are applicable here. At least two of the subparagraphs specifically call for an “intent” to achieve a stated purpose. Without separate analyses of the language of the several subparagraphs, it is fair to say that at least the several subparagraphs call for a mental state of knowledge.
To charge the conduct pleaded here with liability, the majority opinion undertakes to employ the language found in subparagraph 12 of section 2 of the Uniform Deceptive Trade Practices Act:
“[A]ny other conduct which similarly creates a likelihood of confusion or of misunderstanding.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 121½, par. 312.)
By the rule of statutory construction described as ejusdem generis, the word “similarly” limits the “other conduct” of subparagraph 12 to that of like kind or quality as that stated in the several subparagraphs of that act. In Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318, the supreme court was asked to employ its liberal construction of the words “or other structure” so as to bring a mammoth movable shovel within the Structural Work Act. The court, however, applied the rule of construction, saying:
‘The doctrine of ejusdem generis is that where a statute or document specifically enumerates several classes of persons or things and immediately following, and classed with such enumeration, the clause embraces “other” persons or things, the word “other” will generally be read as “other such like,” so that the persons or things therein comprised may be read as ejusdem generis “with,” and not of a quality superior to or different from, those specifically enumerated.’ ” 60 Ill. 2d 432, 436, 328 N.E.2d 318, 320.
The pleaded conduct, upon its face, is not conduct of the kind or quality which appears in either section 2 of the Consumer Fraud Act, or section 2 of the Uniform Deceptive Trade Practices Act.
One finds statements in a number of opinions to the effect that subparagraph 12 of section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1979, ch. 121½, par; 312) is to be given, a broad application and that the good or bad faith of the seller is “not important.” Upon examination, such statements prove to be essentially dicta for the reason that upon review the pleading alleged, or the evidence demonstrated, conduct specifically described in either or both of the respective acts.
In Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790, the opinion reports that the complaint alleged intentional, deliberate and deceptive concealment of the fact of a practice. In Perrin v. Pioneer National Title Insurance Co. (1980), 83 Ill. App. 3d 664, 404 N.E.2d 508, the complaint alleged intentional concealment and misrepresentation.
A division of this court referred to such language in Grimes v. Adlesperger (1978), 67 Ill. App. 3d 582, 384 N.E.2d 537. In that case, however, the trial court found that the plaintiff had engaged in a misrepresentation which he undertook to explain, but failed to explain plausibly. In Williams v. Bruno Appliance & Furniture Mart, Inc. (1978), 62 Ill. App. 3d 219, 379 N.E.2d 52, the complaint alleged fraud, as well as an advertisement with intent not to sell as advertised. In Edgewater Beach Apartments Corp. v. Edgewater Beach Management Co. (1973), 12 Ill. App. 3d 526, 299 N.E.2d 548, the trial court found that the defendant acted with full knowledge.
One finds that the theme of broad interpretation and the use of the “other conduct” language of subparagraph 12 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1979, ch. 121½, par. 312(12)) is most extensively discussed in American Buyers Club of Mt. Vernon, Illinois, Inc. v. Honecker (1977), 46 Ill. App. 3d 252, 361 N.E.2d 1370. There, however, the defendant pleaded fraúd in the inducement to entering the contract, and the trial court found that misrepresentations had been made. A substantial search of the decisions of our courts has failed to discover an instance where an action under the respective acts has been founded upon allegations of the nature here pleaded. I would conclude that the duty of this defendant is correctly stated in Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 389 N.E.2d 623.
I concur in the majority opinion in its affirmance of the dismissal of paragraph 15 of count VI. I dissent from the conclusion reached and the reversal of the trial court’s dismissal of paragraph 14 of count VI, and I would affirm the trial court.