Christensen v. Hoskins, 37326

• Decision Date: 24 December 1964
• Docket Number: No. 37326,37326
• Citation: 65 Wn.2d 417,397 P.2d 830
• Court: Washington Supreme Court
• Parties: Bernard W. CHRISTENSEN and Grace L. Christensen, his wife, Respondents, v. J. M. HOSKINS and Sylvia E. Hoskins, his wife, Appellants.

Page 417

65 Wn.2d 417

397 P.2d 830

Bernard W. CHRISTENSEN and Grace L. Christensen, his wife, Respondents, v. J. M. HOSKINS and Sylvia E. Hoskins, his wife, Appellants.

No. 37326.

Supreme Court of Washington, Department 1.

Dec. 24, 1964.

Blair, Thomas, Hicks, O'Hern & Hokanson, Tacoma, for appellants.

Comfort, Dolack & Hansler, Robert A. Comfort, Tacoma, for respondents.

SHORETT, Judge. ^*

The respondents Christensen purchased a home which had been constructed by the appellants Hoskins. As the Federal Housing Administration insured the financing of the house, the builder delivered to the purchaser a written warranty that the house had been constructed in substantial compliance with the FHA approved plans and specifications. After the FHA had approved the original plans, the builder added a shower in the utility room and finished the wall with enamel paint, which was not waterproof, as required by the approved specifications. Because of the defective waterproofing, water seeped through the wall, causing extensive dry rotting in the floor and supporting beams of the living room. Thus, it was necessary to replace 5 feet of the supporting beam, the floor joists, the oak floor and some wall studding.

The trial court found a breach of the warranty and entered judgment for $8,000 against the Hoskinses. This was the sum asked for in the Christensens' complaint, and found by the trial court to be the difference between the value of the house, if there had been no dry rot, and the value with the dry rot condition.

Upon this appeal, the Hoskinses contend that the warranty does not apply because the shower was added after FHA approval of the plan; that no proper notice of breach of warranty was given; that the Christensens should have mitigated damages; and, even if the warranty does apply, the proper measure of damages is the cost of repair.

We are satisfied that the warranty covered additions such as the utility room shower by explicitly guaranteeing that the house 'is constructed in substantial conformity with the plans and specifications (including any amendments thereof, or changes and variations therein).'

The warranty required notice of any defect within 1 year, and the respondents complied by written notice saying 'Plaster is cracking in several rooms in the home. The half-bath and utility room are in bad condition.' We regard this as adequate notification to the appellants and the FHA of the visible defects. The respondents could not be expected to know the consequences of such defects. Such matters would more likely be within the knowledge and competency of the builder and the FHA.

We come next to the question of damages. Mr. Hoskins testified that the defects could be corrected for $500. Mr. Christensen testified that he had completed the repairs on the building, had done much of the work himself and had had a carpenter work with him, gave no estimate of the cost of repair, but estimated that the house would have been worth at least $8,000 more if there had been no dry rot. There was no other testimony on damages. Faced with these two extremes, the trial judge remarked:

'* * * Now, I'll confess, I'm a little bit taken aback at an $8000 figure, but I don't know what else the court can do. Mr. Hoskins says he could repair it for $500. Now, I think that's foolish; he can't do it. * * *'

Later, on the motion for reconsideration, the court said:

* * * However, the way the case was tried places the court in a tremendously difficult position, because, actually, the case ended up with the only evidence in the case being the owner's own testimony as to the difference (in) the value before and after. If that's the correct measure of damages, that's all the court had to go on. You put in no testimony regarding it. Your man gave no estimate of the cost of repairs, nor anything by which the court could vary that figure. * * *

'I think what you're up against in this case is that the only evidence in the case that the court had to go on at all, as to the damages suffered, was the testimony of the plaintiff himself, as to the difference in the value of the house before and after. Now, that's all the court had to go on. Now, if the rule is correct, that that is the measure of damages, then I don't see what else the court could have done.'

With such unsatisfactory alternatives in the...