Bond v. Thruston

• Decision Date: 24 January 1940
• Docket Number: 3263.
• Parties: BOND v. THRUSTON et al.
• Court: Nevada Supreme Court

98 P.2d 343

60 Nev. 19

BOND v. THRUSTON et al.

No. 3263.

Supreme Court of Nevada

January 24, 1940

Rehearing Denied March 13, 1940.

See 100 P.2d 74.

Appeal from Eighth Judicial District Court, Lincoln County; Edgar Eather, Presiding Judge.

Action by Julian Thruston and another against J. R. Bond for damages allegedly sustained by plaintiffs through the purchase of certain building materials from defendant. From a judgment for plaintiffs and order denying defendant's motion for new trial, defendant appeals.

Affirmed.

Jo G Martin, of Pioche, for appellant.

Harold M. Morse, of Las Vegas, for respondents.

L. O. HAWKINS, District Judge.

Defendant appealed from a judgment rendered against him, and in favor of plaintiffs, by the Eighth Judicial District Court of the State of Nevada, in and for the County of Lincoln, for the sum of $846.60, with interest and costs of suit; and from the order of said court denying his motion for a new trial.

The defendant and appellant relies upon four alleged errors of the trial court to entitle him to a reversal of the judgment rendered against him; which are:

1. It was error for the trial court to overrule the general demurrer interposed by the defendant to plaintiffs' complaint;

2. It was error for the trial court not to sustain defendant's objection, made at the beginning of the trial, to the introduction or reception of any evidence in support of plaintiffs' complaint;

3. The judgment was erroneous in that the findings of fact and conclusions of law constituting the decision of the court are unsupported by the pleadings; and,

4. The judgment is excessive in that the award of $690 therein as special damages is unsupported by the findings.

The first two assignments of error may be considered and disposed of together, as the general demurrer and the objection to the introduction or reception of any evidence in support of the complaint were filed and interposed upon one and the same ground; that the complaint did not state a cause of action.

The complaint, with the caption, entitlement and verification omitted, reads as follows:

"1. That plaintiffs are husband and wife, residing in the town of Pioche, County of Lincoln, State of Nevada, and that defendant is a resident of the town of Pioche, County of Lincoln, State of Nevada.

2. That on to-wit; the 7th day of April, 1937, plaintiffs purchased from defendant 50 pieces of 16 foot 3 ply wood wall board and on to-wit the 8th day of April, 1937, plaintiffs purchased from defendant 60 pieces of 4X8 three-ply wall board, the cost price of which was the sum of $158.40; that defendant represented to plaintiffs that said material so sold and delivered was first-class material and that the same was suitable material for erecting wall and ceilings in a first-class dwelling house, and placing wall board thereon and that the same was thoroughly seasoned and plaintiffs relying upon said representation purchased said materials from defendant.

3. That said materials were used in the construction of a five-room dwelling house erected by said plaintiffs upon Lot 6 Block 14 Town of Pioche, County of Lincoln, State of Nevada, and that after the erection of said dwelling house and papering over said materials so sold and delivered to plaintiffs, the papering became damaged, soiled, and rendered useless for the reason that said materials, so sold and delivered were not as represented to plaintiffs and contained pitch, which has destroyed the interior of said house by leaving unsightly pitch stains in each and every room upon the ceilings and walls of each and every room and, although demands has been made upon said defendant to replace said materials, defendant has failed, neglected and refused to do so, and as a result of said failure so to do, plaintiffs have been damaged in the sum of $158.40.

For a second and further cause of action plaintiffs allege:

1. Re-allege Paragraph 1. of plaintiffs' first cause of action as though fully set forth herein verbatim.

2. That due to the misrepresentations of defendant to plaintiffs it has become necessary for plaintiffs to incur additional expenses to remedy and cure the defects resulting from defendant's misrepresentation and in order to put the said dwelling house in first-class condition the following sums are necessary to be expended, that is to say:

Labor, tearing out inside lining and putting back ply wood	$100.00
Purchase of ply wood	160.00
Sizing and Stuping	50.00
Paper and papering	130.00
Replacing kitchen cabinet	100.00
Living room cabinet	50.00
Repairing bath room	50.00
Replacing inside trim	50.00
Repainting	150.00
	-------
Total	$840.00

Each and every item above set forth is necessary and rendered necessary solely through the false representation of defendant to plaintiffs and as a result thereof plaintiffs have been damaged in the sum of $840.00 and, although demand has been made upon said defendant to pay the same defendant has failed, neglected and refused to pay the same or any part thereof to the damage of plaintiffs in the sum of $840.00.

For a third and separate cause of action plaintiffs allege:

1. Re-allege Paragraph 1 of plaintiffs' first cause of action as though fully set forth herein verbatim.

2. That on to-wit; the 7th and 8th days of April, 1937, defendant sold and delivered to plaintiffs 110 sheets of three-ply lining that at said times mentioned defendant negligently, carelessly and wilfully represented that said material was first-class building material in every respect and said plaintiffs relying on said representation purchased same and thereafter used the same in the construction of a modern five-room dwelling house; that thereafter and upon completion of said dwelling house plaintiffs discovered that said material was not first-class material, but to the contrary was uncured, pitch-laden, third-grade, inferior material and further allege the fact to be that defendant well knew at the times said material was sold and delivered that the same was of inferior grade and not as represented and further allege; that said defendant well knew that said material was unfit for the use for which it was sold and delivered that notwithstanding said knowledge on the part of said defendant plaintiffs are informed and believe, and therefore allege that defendant negligently, carelessly and wilfully and without disclosing the true character of said material allowed plaintiffs to use the same well knowing that damage would result therefrom

That due solely and only to defendant's negligent, careless and wilfull misrepresentation plaintiffs have been disturbed in the peaceable use and occupation of said premises and have been and now are damaged in the sum of $998.00, as is set forth in plaintiffs' first and second causes of action to which reference is hereby made and although demand has been made upon defendant to pay the same, defendant has failed, neglected and refused to pay the same or any part thereof.

Wherefore: Plaintiffs pray judgment of this court as follows:

Upon their first cause of action $158.40; upon their second cause of action $840.00;...