Boriss v. Edwards

• Decision Date: 04 November 1954
• Docket Number: 6 Div. 625
• Citation: 77 So.2d 909,262 Ala. 172
• Parties: Olivia H. BORISS et al. v. William Wren EDWARDS et al.
• Court: Alabama Supreme Court

Page 909

77 So.2d 909

262 Ala. 172

Olivia H. BORISS et al. v. William Wren EDWARDS et al.

6 Div. 625.

Supreme Court of Alabama.

Nov. 4, 1954.

Rehearing Denied Feb. 10, 1955.

Lange, Simpson, Robinson & Somerville, Reid B. Barnes, Birmingham, for appellants.

Gillespy & Dominick, Geo. Peach Taylor, Birmingham, for appellees.

CLAYTON, Justice.

This is an appeal from a judgment of the Circuit Court of Jefferson County at law based upon the verdict of a jury. The verdict and judgment were in favor of plaintiffs for $2,500 damages for deceit by alleged misrepresentation in the sale of a house and lot to plaintiffs. Motion for new trial was overruled and this appeal is from the judgment and also from the order overruling the motion for a new trial. The amended complaint, as submitted to the jury, consisted of one count in the following words:

'Plaintiffs claim of the defendants the sum of $5,000.00 as damages for that on the 19th day of October, 1950, the plaintiffs purchased the following described property and the house located thereon:

'Lot 3, Block 6, according to the survey of Oak Grove Estates, as recorded in the Probate Court of Jefferson County, Alabama in map book 32, page 43, and bearing the street address of 109 Gillon Drive.

'Plaintiffs aver that defendants by and through their agent, servant or employee, John Montgomery, III, who was acting within the line and scope of his authority did falsely represent to plaintiffs, and with the intent to deceive plaintiffs or made recklessly without knowledge of the facts, that said house was a good and substantial house and was built with good materials and in a good and workmanlike manner, and that the septic tank on said house would function properly and would absorb or disseminate all sewage from said house, and that the ditch on said premises was a dry ditch except during and shortly after heavy rains and at such times would contain only rainwater. Plaintiff avers that said representations were false, were made to induce plaintiffs to purchase said premises, and that plaintiffs relied upon said representations, believing them to be true. Plaintiffs aver that said house was not a good and substantial house and was not built with good materials and in a good and workmanlike manner in this: the roof leaks, the chimney is improperly installed; the septic tank would not absorb and dissiminate all the sewage from said house but the same bubbled up in plaintiffs' yard causing vile and noxious odors, and said ditch remains partially filled with water almost constantly and same carries effluent or overflow from septic tanks of adjoining or nearby property over and across plaintiffs' lot, causing vile and noxious odors and subjecting plaintiffs' family to the danger of disease and causing plaintiffs' premises to be unsightly due to the slime and muck and effluent deposited by said overflow from said septic tanks on adjoining or nearby property. From all of which plaintiffs claim damages as aforesaid, and plaintiffs also claim punitive damages.'

As a preliminary consideration we set out herein our applicable statutes which may constitute the basis in law for an action of this kind, namely, Section 108 and 110 of Title 7, Code of Alabama 1940.

' § 108. Misrepresentations.--Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud.'

' § 110. Deceit.--Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of a falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.'

Assignments of error and argument in brief of appellant are addressed to two general propositions of law which were properly raised in valid manner in the trial court. The first proposition is that the three conjunctively alleged misrepresentations of condition of (1) the house, (2) the septic tank, and (3) the ditch, must all be proved for the judgment to stand; that they together constitute one cause of action, and failure of proof of any one of these three averments must result in reversal of this appeal. The other proposition, broadly stated, is that the evidence of misrepresentation in the case was not of such character as will support a verdict for punitive damages.

Evidence for the plaintiffs was that Mr. and Mrs. Edwards (plaintiffs) one Sunday afternoon drove through the development known as Oak Grove Estates, and talked to Mr. Montgomery who was in the office at the development. They were shown two houses by Mr. Montgomery. The one which they later decided to buy, was not completed but was near completion. The floor was not then finished and some interior decorating was not completed. Other work on the house had been finished. This was about September 1, 1950. The contract for purchase of the house was signed two weeks later. Mr. Edwards inspected the house outside the presence of Montgomery after that first visit, and before the day of the signing of the contract, by picking up the key at the office and himself opening the house. Mr. Montgomery was next seen at the signing of the contract in the office of Mr. James Marbury, but even though Mr. Marbury was present, plaintiffs had no dealing whatever with him. The contract was signed by Mr. Edwards, one of the plaintiffs, and Olivia H. Boriss, one of the appellants. The four appellants and their spouses executed a deed to the plaintiffs conveying the house and lot for a stated consideration of $9,725.00. The representations, made the basis of this action, were stated in evidence by plaintiffs to have been made by John E. Montgomery on the occasion when they first visited the subdivision. Mr. Edwards' testimony stated, in substance, these representations, as follows:

'Q. (Continuing.) What representations did he make as to the manner in which this house would be completed? A. Well, that the house would be completed in first-class order, and that it would be equal to the other houses out there, that it would be--that it was built under the F.H.A. requirements and would be up to their specifications.

'At the time, I asked Mr. Montgomery whether the owners would possibly extend a concrete culvert on to the rear of the property. Mr. Montgomery said that they could not do that.

'He said that the ditch was normally dry, that the purpose of the ditch was merely to take off excess water running off the street during and after a rain.

'I asked Mr. Montgomery in particular about the septic tank, and Mr. Montgomery replied that the county officials had examined those lots, individually, for absorptive; that is, for ground absorptive, or water absorption. He stated that the county had approved all the lots and that, if any trouble did develop so that the septic tank didn't function properly, they would correct the trouble; that is, owners would correct the trouble.

'Mr. Montgomery told me if for any reason the septic tank didn't function properly that they would be responsible for repairing it or fixing it, as required.'

Mrs. Edwards' version of these representations, as given in her testimony was substantially as follows:

'A. He told me that the ditch was a wet-weather ditch, that it was for the purpose of draining surplus rain water off the street, and he said that the ditch would contain water only during and after a rain, that otherwise it was a dry ditch. Mr. Montgomery told us it was a rain water ditch and it was dry most of the time.

'Q. What did he tell you in connection with the septic tanks? A. I asked him about it and he said if we had any trouble with it it could be fixed.

'Q. What did he tell you about the completion of the house, the construction of the house? A. He said it would be finished in good order.'

The pertinent parts of the testimony of Mr. Edwards on the question of falsity of the foregoing representations are as follows:

'Q. Prior to closing the sale, you saw it at that time, was there anything wrong with the property? A. Not that I could tell.

'Q. The roof did not leak then? A. I didn't know. I hadn't been in the property and I don't know whether it had recently rained. There was no evidence of leaking roof that I saw.

'Q. Was there any evidence of any faulty construction in any manner at the time you closed the sale or prior thereto? A. Not to me; no, sir.

'Q. And did you examine the house and see? How long was it after you got into the house that you had trouble with it? A. It was probably two or three months. It was very soon after I turned on the gas floor furnace.

'There was water came through my ceiling, one of my bedrooms.

'Well, it seemed to be rather constant accumulation, a drip, and saturated the sheetrock to such an extent that the sheetrock became decomposed and stained the walls and part of the ceiling.

'I assumed first that it was a leaky roof. Soon thereafter I tried to contact Mr. Boriss. I wasn't able to reach Mr. Boriss.

'The roof still leaks. That is, water is still there. The condition still exists.

'I haven't made any efforts to alleviate the situation; as I decided, upon further inspection--at least I believed, upon further inspection, that it was a condensation form of heat going through the metal, extending through the roof of the house. Water condenses on that metal exterior and drips constantly on to the ceiling.

'The septic tank was in good condition at that time, so far as I could tell. The house hadn't been used and there had been very little or no water flushed through the septic tank, or to the septic tank.

'Q. Did the septic...