Cain v. Bain, C-4764

CourtSupreme Court of Texas
Citation709 S.W.2d 175,29 Tex.Sup.Ct.J. 214
Docket NumberNo. C-4764,C-4764
PartiesJames CAIN, d/b/a James Cain Company, et al., Petitioners, v. James Lee BAIN et ux., Respondents.
Decision Date12 February 1986

Ross, Banks, May, Cron & Cavin by John A. Cavin, Houston, for petitioners.

Ross, Banks, May, Cron & Cavin, Gordon A. Holloway, and N. Carlene Rhodes, Houston, for respondents.


James and Karen Bain purchased a 20-year-old house in 1976 from George and Carroll Banks. The real estate agent for the transaction was an employee of James Cain Company. In 1978, the Bains tried to sell their house but were unable to find a buyer because of a foundation defect. They sued James Cain Company for violations of the Texas Deceptive Trade Practices Act. The trial court granted Cain's Motion for Directed Verdict and rendered a take nothing judgment against the Bains. In an unpublished opinion, the court of appeals reversed the trial court's judgment. Tex.R.Civ.P. 452.

The trial court submitted Issue No. 7 asking the jury:

Do you find from a preponderance of the evidence that on or before October 13, 1977 the Plaintiffs James Lee Bain and wife Karen Sue Bain either had knowledge of such substantial foundation structural defect, or were on notice of such facts as would cause a reasonable, prudent person to make inquiry which could lead to the discovery of such defect by the exercise of reasonable diligence?

Answer: "We do" or "We do not"

Answer: We do

The evidence revealed that when the Bains moved into the house they noticed a bulge under one window, a crack in the kitchen wall, and a sticking door. Within six or seven months after occupying the house, they noticed a foundation crack near the patio. Karen Bain testified that during the spring or summer of 1977 she was told there might be a slab problem with the house.

The Bains presented some evidence to the contrary. They consulted with a foundation expert in April 1978, who informed them that there was not a substantial foundation defect. Also, they argue the flaws in the house could have been indicative of problems other than a foundation defect, such as ordinary subsidence problems common to the Houston area, or the effects of age, dampness and weathering on a 20-year-old house.

On appeal, the Bains asserted that the jury finding that they were on constructive notice of the foundation defect was against the great weight and preponderance of the evidence. The court of appeals reversed the trial court's judgment and...

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