Benefit Of Bargain Damages In Missouri Merchandise Practices Act When Consumers Do Not Rescind
08/19/08
Consumers contracted with home builder to purchase homes. Contract required home builder to provide warranty. Home builder was unable to provide warranty at closing because at time home builder signed the purchase contracts, home builder was no longer enrolled in the warranty program. After failing to receive the warranty, consumers filed suit against home builder. Thereafter, home builder provided the warranty. Consumers then amended their petition to allege violations of the Missouri Merchandise Practices Act by not timely providing warranty. Home builder claimed improper to award judgment on the alleged violations, claiming consumers did not prove they suffered any ascertainable loss of money or property and claiming that award of attorneys’ fees under the Missouri Merchandise Practices Act is improper absent award of actual damages.
Court of appeals finds that “benefit of bargain” rule is method trial court is to use to determine damages in cases of fraud and deceit where the parties have not elected to rescind the contract and seek restitution. This rule allows the defrauded party to be awarded the difference between the actual value of the property and the value of it if it had been as represented, measuring the damages at the time of the transaction. Here consumers must introduce evidence of the value of the real estate as bargained for, with the warranty, and the value of the real estate as received, without the warranty. Matter is remanded to the trial court to receive evidence of the value of the real estate with and without the warranty.
Schoenlein v. Routt Homes, Inc., Docket No. ED89955 (Mo.App.E.D. August 19, 2008).
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