Burkett v. J. A. Thompson and Son
| Decision Date | 29 April 1957 |
| Citation | 310 P.2d 56,150 Cal.App.2d 523 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eldon G. BURKETT, Plaintiff and Respondent, v. J. A. THOMPSON AND SON, a corporation, et al., Defendants, Edward W. Wicker, Appellant. Civ. 22188. |
Gray, Glass, Allen & Ransom, by Dudley Gray, Gardena, for appellant.
Dwain Tarbet, Los Angeles, for respondent.
Appeal from a judgment for $5,450 damages resulting from an allegedly fraudulent sale of real property. A reversal is demanded on the ground that the evidence does not sustain a finding that defendant Wicker, through his agent, represented to his successor in interest that the house was built on original soil.
Lot 14 was on the side of a hill and was owned by Marlow Burns Land Company in May, 1946. The company employed J. A. Thompson and Son to fill the lot and grade it for the purpose of subdivision and sale. The grading and filling were finished the same month and Mr. Thompson filed his affidavit on June 26, 1946, with the Department of Building and Safety averring that the lot had been filled and compacted in accordance with engineering requirements for the construction of a one-story residential building. The lot was approved for such construction by the department on July 8, 1946.
During the period of filling and grading, Marlow Burns sold the lot to Robert A. Dewey. In October, 1950, the latter sold the lot to appellant. While Mr. Wicker was in possession, he employed one Bushman, a licensed building contractor to build thereon a one-story house and garage. At the same time, at appellant's request, Bushman called at the office of the Department of Building and Safety of Los Angeles and inquired with reference to lot 14 and found from the records that the lot had a compacted fill and that it had been approved by both the City of Los Angeles and the Federal Housing Authority for the construction of a onestory residence. He communicated this information to appellant. Thereafter, he dug a trench for the foundation twelve inches by fourteen inches and found no evidence of an improperly compacted fill. Neither did the city inspector, nor the loan inspector who approved the excavation before the cement was poured, find such evidence. From the communications of Bushman, appellant acquired a knowledge that lot 14 was not only approved for a building site for a one-story residence, but also that the area beneath the surface was compacted, filled ground.
In February, 1951, appellant sold the property to Mr. and Mrs. George Pemmitt for $17,500 through William Hummell. Mrs. Pemmitt testified that the salesman told the buyers that the house had been built on the 'original land' and that there was filled ground on only the back of the lot to a point eight feet from the porch. While Mrs. Pemmitt examined the premises with care she testified that she relied upon Hummell's statements and that she purchased the property solely because of her reliance upon his declarations, despite the fact that there was other testimony that the hilly character of the immediate vicinity would have suggested to any person who inspected the lot that it had been filled and graded. The trial court chose to believe Mrs. Pemmitt and we are bound by its decision in that respect.
There is no doubt that both appellant and his agent Hummell knew that the house was built on filled land. Appellant testified that he had been so informed by Bushman. Hummell indicated his own knowledge when he testified that in his opinion it was apparent to a casual observer that the house was located on filled land. He further testified that he never told the Pemmitts that the house was built on filled land.
Appellant argues that there was no fraud because Mrs. Pemmitt inspected the property and had knowledge that the house was built on filled land and therefore did not rely on Hummell's representation, citing Carpenter v. Hamilton, 18 Cal.App.2d 69, 71, 62 P.2d 1397, 1399. But that case holds only that the right to rely on representations '* * * does not exist where a purchaser chooses to inspect the property before purchase, and, in making such inspection, learns the true facts * * *' (Emphasis added.) In the case at bar Mrs. Pemmitt testified that she did not know the house was on filled land until after it was sold to respondent. The trial court believed this testimony and made its findings accordingly. It is not our prerogative to review and reevaluate the evidence. We cannot say that the findings of concealment and misrepresentation on the part of appellant, through his agent, are not supported by the...
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