Carpenter v. Donohoe
| Decision Date | 20 January 1964 |
| Docket Number | No. 20087,20087 |
| Parties | Harold F. CARPENTER, Plaintiff in Error, v. Philip J. DONOHOE, Theresa M. Donohoe, and Northwestern National Insurance Company of Milwaukee, Wisconsin, Defendants in Error. |
| Court | Colorado Supreme Court |
Roepnack & Orahood, Arvada, for plaintiff in error.
Isaac S. Willson, Alfred J. Hamburg, Denver, for defendants in error.
The Donohoes filed their complaint for damages against Carpenter, alleging fraud in their first count and breaches of warranties, express or implied, in the second. Compelled by the trial court to elect at the conclusion of the evidence whether they relied on fraud or warranties, the Donohoes chose the former. Thereupon the trial court dismissed the count based upon breaches of warranties, and entered judgment in favor of the Donohoes on the fraud count in the sum of $9740.24. Carpenter would have us reverse this judgment in this proceeding.
Carpenter had built, and was offering for sale, a house in Arvada, Colorado. The Donohoes purchased the house and within four months after they moved in, the walls began to crack. From that time the condition of the house progressively worsened rather rapidly. The condition became so serious that, in order to prevent a cavein of a wall of the basement, Carpenter shored it up with heavy lumber. Living in the house in time became hazardous to the Donohoe family.
The trial court made findings that the house was constructed in such manner that a number of county building code provisions were violated; that as a result of these violations the defects, of which complaint was made, developed; and that Carpenter knew of these violations, but that the Donohoes were ignorant of them and as to the Donohoes the violations constituted latent conditions, all of which made Carpenter accountable to the Donohoes in damages for fraudulent concealment.
Errors are attributed to the trial court's actions in determining (1) that there was sufficient evidence to sustain the charge of fraud, and (2) that proper evidence was adduced to show the resultant damages.
Actionable concealment consists of (a) the 'concealment of a material existing fact, that in equity and good conscience should be disclosed'; (b) 'knowledge that [one] is concealing a material fact that in equity and good conscience [one] should disclose'; (c) ignorance on the part of the one 'from whom such fact is concealed * * * or of the existence of the fact concealed'; (d) the 'concealment made or practiced with the intention that it shall be acted upon'; and (e) 'concealment resulting in damage.' Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458; see Cohen v. Vivian, 141 Colo. 443, 349 P.2d 366, 80 A.L.R.2d 1448; Denver Business Sales Co. v. Lewis, 148 Colo. 293, 365 P.2d 895.
Although the trial court could have inferred from the circumstances of the case that Carpenter intended that the concealment found to exist was to be acted upon by the Donohoes, it did not do so. The trial court is the fact-finder, and it should have made a finding concerning this ingredient of fraudulent concealment. It is not the function of this Court to make determinations of fact. Risbry v. Swan, 124 Colo. 567, 239 P.2d 600.
If other ingredients are proved, a case of fraudulent concealment is established when it is shown that a builder did not disclose to a purchaser that latent defects existed in a structure because of violations of a building code. Wolford v. Freeman, 150 Neb. 537, 35 N.W.2d 98.
The record discloses that the trial court received evidence of the cost to which the Donohoes were put in repairing the house, and lumped into this sum was the cost of removal of the septic tank and the piping to it, and the replacement of these fixtures with a sewer line attached to the public sewer service. There is no way that the cost of such removal and replacement may be separately ascertained.
Ordinarily, the measure of damages for fraud is the difference between the actual value and the value of the property if it had been as represented. Corder v. Laws, 148 Colo. 310, 366 P.2d 369. The cost of putting the property in the condition that would bring it into conformity with the value of the property as it was represented to be would satisfy this rule regarding the measure of damages. See Glisan v. Smolenske, 153 Colo. ----, 387 P.2d 260.
We entertain some misgivings concerning the proof of damages in this case meeting the standard required in fraud cases. But there is no doubt about the cost of the specific items of removal and replacement of fixtures for sewage: this represented a departure from the original construction of the house, and since the cost thereof was part of a total testified to, making it impossible to segregate it, the entire proof relating to the amount of damages leaves us without any means for determining a proper assessment of damages. See Colorado Kenworth Corp. v. Whitworth, 144 Colo. 541, 357 P.2d 626, 628.
Since the judgment must be reversed for the reasons already expressed, we shall consider the propriety of the action of the trial court in requiring the Donohoes to elect whether they sought relief for fraud or for breaches of...
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