Bedwell Lumber Co., Inc. v. T & T Corp.

• Decision Date: 30 May 1980
• Citation: 386 So.2d 413
• Parties: BEDWELL LUMBER COMPANY, INC. v. T & T CORPORATION et al. 79-199.
• Court: Alabama Supreme Court

Page 413

386 So.2d 413

BEDWELL LUMBER COMPANY, INC. v. T & T CORPORATION et al.

79-199.

Supreme Court of Alabama.

May 30, 1980.

Rehearing Denied July 25, 1980.

Robert F. Vargo of Brantley & Vargo, Bay Minette, for appellants.

Thomas W. Underwood, Jr. of Chason & Underwood, Foley, for appellee T & T Corp.

Charles C. Simpson, III of Owens & Simpson, Bay Minette, for appellee A. N. D., Inc., d/b/a Baldwin Real Estate Agency.

JONES, Justice.

This appeal, from a judgment based on a jury verdict for the Plaintiff on a fraud claim, under § 6-5-101, Code 1975, presents a sufficiency of the evidence issue. We affirm.

That the evidence of record amply supports the verdict is demonstrated in the following brief evidentiary recitation supportive of Plaintiff's claim: Plaintiff T & T Corporation, a land developer, through its president Harris C. Grant, offered to purchase 17 lots, plus certain undeveloped land, from Defendant Bedwell Lumber Company, dealing exclusively through Bedwell's agent, Ms. White, of the Baldwin Real Estate Agency. The remaining lots within the subdivision had been sold previously and several of these purchasers had built homes thereon. Before the "closing," Mr. Grant telephoned Ms. White and expressed his concern about the "percolation of the lots." Ms. White replied that Mr. Bedwell at that very moment was in her office and she would ask him whether the lots would support septic tanks. Mr. Bedwell told her (and she, in turn, told Mr. Grant) that the platted lots had been approved for septic tanks, but he was not sure about the acreage.

Within a few days after the closing of the sale, Mr. Grant told Ms. White that several of the lots would not percolate. When Ms. White related this to Mr. Bedwell, he told her to have Mr. Grant contact Hand Engineering "to see what the problem was." Pursuant thereto, Hand reaffirmed its earlier finding, made on behalf of Bedwell at the time the subdivision was platted, that 5 of the 17 lots here involved failed to meet percolation tests and recommended curative action.

Upon receipt of a claim letter from Mr. Grant, Mr. Bedwell asked Ms. White to request Hand "to do whatever was necessary," which she did. Hand performed, or supervised the performance of, the corrective work, including tons of fill dirt and bulldozing, for a total cost of $17,081.04, which Bedwell refused to pay.

We have strained at the record and Appellant's brief in an effort to discern a viable issue for appellate review. Appellant's strongest position may be summarized as follows: Admitting that the evidence, though disputed, supports a finding of misrepresentation with respect to the percolation quality of the lots, Appellant insists:

"A party has no right to rely on representation as to the condition, quality, or character of property or as to its adaptability to certain uses, where the parties stand on an equal footing and have equal means of knowing the truth. (Citing 37 Am.Jur.2d, Section 273, Fraud and Deceit ; Restatement, Torts, Section 538, Comment E, and Section 542, Comment A.)

"In the instant case, the evidence was uncontradicted that T & T Corporation had knowledge of such facts which ought to have excited inquiry regarding the percolation...