Issue 3. Negligent Misrepresentation.
As noted above, the District Court concluded that LDS
failed to exercise reasonable care in communicating the
house's condition to Wagner. LDS contends that it did not
have adequate notice of the theory of negligent misrepresen-
tation, and was thereby precluded from preparing an adequate
defense.
We disagree. The District Court discussed negligent
misrepresentation nine months before trial. In its order
with memorandum dated April 18, 1985, the court discussed
Wagner's complaint and stated: "Together, Counts I and I1
sufficiently state a cause of action for negligent misrepre-
sentation." LDS's trial brief dated January 30, 1986, spe-
cifically mentions and discusses negligent misrepresentation.
The theory of negligent misrepresentation was mentioned again
during trial in January 1986, when Wagner's counsel stated:
"The theory being present is actually fraud and misrepresen-
tation, constructive fraud, negligent misrepresentation."
Negligent misrepresentation was mentioned repeatedly
throughout the proceedings. We hold that LDS had adequate
notice of the theory.
LDS next contends that the facts do not support the
elements of negligent misrepresentation. LDS asserts that
Wagner failed to establish the proper standard of care
through some type of expert testimony, and therefore failed
to prove that LDS deviated from the standard. LDS argues
that it never knowingly supplied false information and,
therefore, was not negligent.
We are guided on this issue by Brown v. Merrill Lynch,
Pierce, Fenner, Etc. (1982), 197 Mont. 1, 12, 640 ~ . 2 d 453,
458-459, quoting the Restatement of Torts 2d S 552 (19771,
where we noted:
"One who, in the course of his business,
profession or employment, or in any
other transaction in which he has a
pecuniary interest, supplies false
information for the guidance of others
in their business transactions, is
subject to liability for pecuniary loss
caused to them by their justifiable
reliance upon the information, if he
fails to exercise reasonable - -or
care
com~etencein obtainina or communicatina
- information."
C