44 N.C. App. 707
N.C. Ct. App.
1980
CLARK, Judge.

Defendant sold a newly completed house and lot to plaintiff. In so doing he impliedly warranted to her that at the time оf passing the deed the dwelling, together with all the fixtures, was substantially free from major structural defects and was constructed in a workmanlike manner. See Griffin v. Wheeler-Leonard & Co., 290 N.C. 185, 225 S.E. 2d 557 (1976); Hartley v. Ballou, 286 N.C. 51, 209 S.E. 2d 776 (1974); 13 Strong’s N.C. Index 3d Vendor & Purchaser § 6.1 (1978).

Clearly, the plaintiff has alleged and offered evidence tending to show a breach of imрlied warranty. However, an action for breach of implied warranty would in this case be barred by the ten-year statute of limitations, N.C. Gen. Stat. § 145(b) (repealed, effective 1 October 1979). It is apparent that plaintiff relies on fraud as the bаsis for recovery in this action for the purpose of bringing the claim within N.C. Gen. Stat. § 1-52 providing for a limitation of three years from the time of discovery of fraud.

The following essential elements of actionable fraud are well established: (1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E. 2d 494 (1974); Johnson v. Owens, 263 N.C. 754, 140 S.E. 2d 311 (1965); Moore v. Wachovia Bank & Trust Co., 30 N.C. App. 390, 226 S.E. 2d 833 (1976). It is settled that where there is a duty to speak, the concealment ‍​‌​‌​‌​​​​‌​​‌‌‌​​​​​‌​​​‌​‌​​​‌‌‌​​‌‌​​‌​​​​‌​​‍of a material fact is equivalent to fraudulent misrepresеntation. Griffin v. Wheeler-Leonard & Co., supra.

We find, however, that one of the essential elements of fraud is not supported by the evidence and was not found by the trial court. The plaintiff has failed to show that defendant D. K. Collins knew the masonry veneer was not anchored to the frame with metal ties as required by the Raleigh Building Code, Sec. 15(5). The evidence is sufficient to support the findings of the trial cоurt that the structural defect was material and that defendant D. K. Collins as builder was responsible for the defect. There wаs evidence that the masons who performed the work for defendant used metal ties, but that the ties, particularly in the аrea where the wall cracked, were not properly spaced as required by the Code. There was evidence that defendant furnished sufficient metal ties to the masons, and that the ties would not be visible when put in place between the framing and the brick. Nonetheless, even though the defendant on a daily basis observed their work, there is no evidence that he knew that the metal ties used by them were not spaced as required.

In addition, the trial court concluded: “2. Collins knew, or should have known, that the house was constructed with an inadequate number of wall ties.” (Emphasis added.) The phrase “or should have known” does not meet the essential element of guilty knowledge or fall within any recognized exception to the rule that defendant must have knowledge of the falsity in оrder to be liable for fraud. In Griffin, supra, the court stated: “There is no ‍​‌​‌​‌​​​​‌​​‌‌‌​​​​​‌​​​‌​‌​​​‌‌‌​​‌‌​​‌​​​​‌​​‍evidence whatever that Wheeler knew that the Griffin house had been constructed so that there would, or likely would, be a continuing water problem in the crawl space.” 290 N.C. at 199, 225 S.E. 2d at 566. The Court held that the directed verdict on the fraud issue was properly sustained. Similarly, the general rule is that “[silence, in order to be an actionable fraud, must relate to a material matter known to the party and which it is his legal duty to communicate to the other сontracting party . . . .” (Emphasis added.) 37 Am. Jur. 2d Fraud § 145 (1968). See also, Setzer v. Old Republic Life Insurance Co., 257 N.C. 396, 126 S.E. 2d 135 (1962).

There are exceptions to the rule that to recover for fraud the defendant must have knowledge of the falsity. Guilty knowledge ‍​‌​‌​‌​​​​‌​​‌‌‌​​​​​‌​​​‌​‌​​​‌‌‌​​‌‌​​‌​​​​‌​​‍will be implied from a statement made by a vendor who affirms a materiаl fact which he does not know to be true. Silver v. Skidmore, 213 N.C. 231, 195 S.E. 775 (1938); Pate v. Blades, 163 N.C. (Strong) 267, 79 S.E. 608 (1913). Under special circumstances the Court may imply knowledge on the speaker, such as the inventor of a machine, “who must be fully informed as to [a machine’s] good and bad qualities.” Unitype Co. v. Ashcraft Bros., 155 N.C. (Strong) 63, 67, 71 S.E. 61 (1911). Under certain conditions if a party to a bargain avers the existence of a material fact recklessly, the party will be held responsible for the falsehood. Roberson v. Williams, 240 N.C. 696, 83 S.E. 2d 811 (1954); Atkinson v. Charlotte Builders, Inc., 232 N.C. 67, 59 S.E. 2d 1 (1950); Ward v. Heath, 222 N.C. 470, 24 S.E. 2d 5 (1943). However, we do not find any special conditions, circumstances, or reсklessness on the part of the defendant, that would bring the case before us within any recognized exception to thе broad rule that culpable knowledge of the misrepresentation is a necessary element of fraud.

The plaintiff relies on Brooks v. Ervin Construction Co., 253 N.C. 214, 116 S.E. 2d 454 (1960). In that cаse defendant-builder sold plaintiff a house and lot. The defendant had constructed the house over a large hole which it had filled with debris and then covered over with clay. The defendant had actual knowledge of this condition, ‍​‌​‌​‌​​​​‌​​‌‌‌​​​​​‌​​​‌​‌​​​‌‌‌​​‌‌​​‌​​​​‌​​‍and defendant knew, or should have known, that a house built on “disturbed soil” will settle and material damage will result. The Court ruled that the evidenсe made out a case of actionable fraud sufficient to carry the case to the jury.

Plaintiff’s reliance on Brooks is misplaced since the defendant in Brooks had actual knowlеdge of the structural defect, the displaced soil. In the case sub judice, defendant Collins should have known that inadequate spacing of the metal ties, as shown by plaintiff’s evidence, would cause the masonry wall to pull from the framing and that material damage would result. But knowledge of the defect which would cause the result is absent. Griffin v. Wheeler-Leonard & Co., supra. The negligence of the masоns employed by defendant in failing to properly space the metal ties is imputed to the defendant and might be the basis for a tort action based on negligence or a breach of contract claim, if this were an action by an owner against a builder who contracted with the owner to build the house. Moreover, the improper spacing of the metal ties would support a claim for breach of implied warranty by the buyer-plaintiff against the seller-defendant in the case before us. Here, however, the plaintiff has based her action on fraud, and the mason’s knowledge оf the improper spacing is not imputed to the defendant so as to attribute to him actual knowledge, a necessary element of fraud.

Since there is no evidence of actual knowledge by defendant of the construction defect and the finding of the trial court that “Collins knew, ‍​‌​‌​‌​​​​‌​​‌‌‌​​​​​‌​​​‌​‌​​​‌‌‌​​‌‌​​‌​​​​‌​​‍or should have known” about the defect does not support the judgment for fraud, the judgment is vacated, and the action is dismissed.

Vacated and dismissed.

Judges ARNOLD and ERWIN concur.