Brooks v. Ervin Const. Co., 253

• Citation: 253 N.C. 214,116 S.E.2d 454
• Decision Date: 19 October 1960
• Docket Number: No. 253,253
• Parties: Glenn W.BROOKS and wife, Doris S. Brooks, v. ERVIN CONSTRUCTION COMPANY, a corporation.
• Court: United States State Supreme Court of North Carolina

Page 454

116 S.E.2d 454

253 N.C. 214

Glenn W.BROOKS and wife, Doris S. Brooks, v. ERVIN CONSTRUCTION COMPANY, a corporation.

No. 253

Supreme Court of North Carolina.

Oct. 19, 1960

Richard M. Welling, Charlotte, for plaintiffs, appellants.

McDougle, Ervin, Horack & Snepp, Charlotte, for defendant, appellee.

PARKER, Justice.

Plaintiffs' evidence tends to show the following facts: Defendant construction company purchased and developed that certain development known as Markham Village, and particularly Lot 3, Block 22 of Markham Village, a lot known as 2415 Amesbury Avenue. In the spring of 1955 plaintiffs, who are husband and wife and have three children, were anxious to buy a home for immediate occupancy, because the house they rented had been sold, and they had received notice to vacate. They began negotiations with defendant for the purchase of a house and lot in Markham Village. Defendant showed them several completed houses in Markham Village, which they did not like. Then defendant showed them a vacant lot at 2415 Amesbury Avenue. It was a smooth lot. There was a pile of dirt in the right front of the lot about the size of a house. It looked like solid clay. There were no stumps or roots or anything to be seen on it. Defendant told them in substance that plans for a house to be built on this lot had already been approved by the Veterans' Administration for a GI prospective purchaser, whose credit did not check out, and the prospective sale was not consummated. Plaintiffs learned later this prospective purchaser was Marvin Jerome Bryant. Marvin Jerome Bryant refused to buy this lot and a house to be constructed on it by defendant on account of a huge hole dug on the lot. Marvin Jerome Bryant was never refused credit so far as he knows. Defendant told plaintiffs, 'we can fix up for you real fast because it has already been approved by the Veterans' Administration, and will save you a lot of time.' Defendant's salesman assured plaintiffs that defendant had an excellent reputation, and would build them a fine house, and build it properly in a workmanlike manner. The male plaintiff saw this lot several times after this, and never saw anything there that would lead him to believe that anything was wrong with the lot. It looked like a fine lot. Defendant never said anything to plaintiffs about the soil on the lot, and plaintiffs asked no questions in respect thereto, or as to whether the lot had been filled in.

On 16 May 1955 plaintiffs contracted in writing to purchase and defendant to sell for the price of $12,400 the lot known as 2415 Amesbury Avenue in Markham Village and a house to be built thereon known as the Pinecrest Model by defendant according to plans and specifications approved by the Veterans' Administration. Title and possession of this house and lot were transferred and delivered to plaintiffs by deed dated 23 September 1955, and duly recorded. At the same time defendant gave plaintiffs a one-year written warranty of completion of the contract in conformity with approved plans and specifications of the Veterans' Administration.

Plaintiffs moved into their house on 29 September 1955. Three months later three doors in the house were not closing, the doors were binding at the top against the frame. Male plaintiff reported this to defendant, and it sent several men there, who placed a large beam propped up on 2 x 4s resting on one or two bricks under the living room and kitchen near the wall where the doors were not closing, and jacked up the floor level about one-half an inch. Whereupon the doors closed properly. After this the house continued to settle, the plaster therein began to crack, the nails in the walls started popping out of the plastering, a bulge appeared in the living room in the hall, and the cornice molding came loose. The floors were not solid and squeaked.

In February or March plaintiffs made an addition to their house, and when this was being done the male plaintiff saw the builder dig up some little pieces of wood and limbs in excavating two or three feet for a cement foundation.

Some time in 1958 or 1959 two neighbors of plaintiffs were standing near the corner of their house, and the male plaintiff was fussing about all the boards, logs and parts of bricks he was digging up in working in his yard. Whereupon one of these neighbors, Harold Murr, told him to go under his house and he would find a whole lot more. Immediately thereafter the male plaintiff got a shovel, went under the house, and dug about seven or eight feet long and about four or five feet deep. In so digging, he dug out sticks, charcoal and little pieces of pine and plastering. It had rained the day before, and water began seeping in the hole. In two hours the hole was about two feet deep in water, and he stopped digging because he could not dig in water. When he had dug as much as five feet deep, he had never reached solid earth.

In 1955 before defendant showed plaintiffs the vacant lot at 2415 Amesbury Avenue, it had dug a hole in this lot with a bulldozer at least fifteen feet deep and about the width of a house, some fifty feet. In its development of this part of Markham Village, defendant had gathered in the street near this lot a pile of trees, stumps, limbs and debris about fifty feet long and twenty feet high. Defendant set fire to this pile, and afterwards pushed what was left from the fire into the hole it had dug on the lot at 2415 Amesbury Avenue, and covered it up. Defendant built the house it sold to plaintiffs centered over this filled up hole.

C. A. Waters, who has been in the business of building dwelling houses in the Charlotte area for 25 or 30 years, testified that the concrete footing of plaintiffs' house was resting at the front on filled dirt, and this is not good building practice, because a house continues to go down if it is built on disturbed soil. In the building trade fill dirt is disturbed soil. To prevent further sinking of plaintiffs' house, one would have to go down until he got firm clay and pillar the house up, or else move the house off and put in a new foundation. On cross-examination he said he did not know if it is not common practice in the building trade to fill in land tamped down with a certain machine and build on it.

Plaintiffs instituted this action on 6 May 1959.

The maxim caveat emptor does not apply in cases of fraud. Guy v. First Carolinas Joint Stock Land Bank, 205 N.C. 357, 171 S.E. 341; Smathers v. Gilmer, 126 N.C. 757, 36 S.E. 153; Walsh v. Hall, 66 N.C. 233.

One of the fundamental tenets of the Anglo-American law of fraud is that fraud may be committed by a suppressio veri as well as by a suggestio falsi. 23 Am.Jur., Fraud and Deceit, p. 850.

This Court said in Brooks Equipment & Manufacturing Co. v. Taylor, 230 N.C. 680, 55 S.E.2d 311, 315: 'It is a practically universal rule, and it is the law in this State, that under circumstances which make it the duty of the seller to apprise the buyer of defects in the subject matter of the sale known to the seller but not to the buyer, suppressio veri is as much fraud as suggestio falsi.'

Where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention,...