Cochran v. Keeton

• Decision Date: 09 September 1971
• Docket Number: 8 Div. 418
• Citation: 287 Ala. 439,252 So.2d 313
• Parties: In re John W. COCHRAN and Lillie M. Cochran v. Paul KEETON and Charles Thompson, individually and d/b/a Keeton and Thompson. Ex parte Paul KEETON and Charles Thompson, individually and d/b/a Keeton andThompson.
• Court: Alabama Supreme Court

Page 313

252 So.2d 313

287 Ala. 439

In re John W. COCHRAN and Lillie M. Cochran v. Paul KEETON and Charles Thompson, individually and d/b/a Keeton and Thompson.

Ex parte Paul KEETON and Charles Thompson, individually and d/b/a Keeton andThompson.

8 Div. 418.

Supreme Court of Alabama.

Sept. 9, 1971.

Tompkins & Tompkins, Tuscumbia, for petitioners.

MADDOX, Justice.

Petitioners, Paul Keeton and Charles Thompson, individually, and d/b/a Keeton and Thompson, ask us to review the opinion and judgment of the Court of Civil Appeals, and to reverse and remand on the ground that the opinion is contrary to previous opinions of this Court. We granted the writ of certiorari and have reviewed the opinion and judgment rendered by the Court of Civil Appeals, and hereby affirm.

The Court of Civil Appeals recognized that this Court's decision in Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So.2d 884 (1961) was applicable to the fact situation presented before it, but observed:

'After our study and consideration, and in view of the modern trend and authority, we are led to the conclusion that if the question here to be decided were presented to the Supreme Court of Alabama, the decision in Druid would be overruled, insofar as it adopts the rule of caveat emptor in the sale by a builder-vendor of a newly constructed home and that the principle of an implied warranty of fitness and habitability for the purpose purchased would be recognized.' The Court of Civil Appeals further said:

'This Court has respectfully reached its decision in this matter after careful consideration, with the sole end in mind to serve the cause of justice, and with the sincere belief that the Supreme Court, if presented with the opportunity to review the decision of Druid Homes, Inc. v. Cooper, supra, in the light of recent authority, would agree with our decision. We know of no other means to present the matter for its consideration.'

Being presented with the opportunity to review Druid, we do overrule Druid insofar as it adopts the rule of caveat emptor in the sale by a builder-vendor of a newly constructed house.

We have gone to the original record and files in Druid, and note that in the Druid case, no brief was filed by the purchaser and no argument was made in his behalf when the cause was argued and submitted. We also note that much of the law in this field has developed during the past decade. The modern trend, even in some of the jurisdictions from which this Court cited opinions in Druid is to repudiate the doctrine of caveat emptor in fact situations similar to the one here under consideration.

By affirming the Court of Civil Appeals in this instance, we realize that we have not answered all of the questions which may arise in the future as a result of our action here, but we take this most important first step.

Considerable comment has been made by legal scholars about the new trend toward judicial abolition of the doctrine of caveat emptor in real estate sales. Most scholars question the retention of the rule in view of current day conditions.

See: The Case of the Unwary Home Buyer; The Housing Merchant did it, E. F. Roberts, 52 Cornell Law Quarterly 835 (1967);

The Case for an Implied Warranty of Quality in Sales of Real Property, Haskell, 53 Georgetown Law Journal 633 (1965);

Caveat Emptor in Sales of Realty-Recent Assaults upon the Rule, Bearman, 14 Vanderbilt Law Review 541 (1961);

Caveat Emptor in Sales of Real Property--Time for a Reappraisal, Nielsen, 10 Arizona Law Review 484 (1968);

Implied Warranty of Fitness and Suitability for Human Habitation as Applied to the Sales of New Homes in Texas, 6 Houston Law Review 176 (1968);

Real Property--Implied Warranty in Sales of New House by Vendor, 58 Kentucky Law Journal 606 (1969--70);

Builder--Vendor's Implied Warranty of Good Workmanship and Habitability, 1 Texas Tech Law Review 111 (1969);

Real Property--Vendor and Purchaser--Implied Warranty, 45 Washington Law Review 670 (1970);

The Doctrine of Caveat Emptor as Applied to both the Leasing and Sale of Real Property; The Need for Reappraisal and Reform, 2 Rutgers Camden Law Journal 120 (1970);

Quare: Caveat Emptor or Caveat Venditor, Young and Harper, 24 Arkansas Law Review 245 (1970).

Illustrative cases from other jurisdictions which have held a builder-vendor liable on a theory of implied warranty are: Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224, 74 Cal.Rptr. 749 (1969); House v. Thornton, 76 Wash.2d 428, 457 P.2d 199 (Wash.1969); Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698 (1966); Waggoner v. Midwestern Development Inc., 154 N.W.2d 803 (S.D.1967); Humber v. Morton, 426 S.W.2d 554 (Tex.1968); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); Rothberg v. Olenik, 262 A.2d 461 (Vt.1970) Weeks v. Slavick Builders, Inc., 24 Mich.App. 621, 180 N.W.2d 503 (1970); affirmed, 384 Mich. 257, 181 N.W.2d 271 (1970). Some jurisdictions, however, still strictly apply the doctrine of caveat emptor but the trend appears definitely to be changing to the view we express here. See Annotation: Defective Home--Vendor's Liability, 25 A.L.R.3d 383.

Realizing that this decision changes a long standing rule as to the application of the rule of caveat emptor in the sale of a new house by a builder-vendor, we feel justice will be best served by holding that, except as to this plaintiff-appellant in the instant case, the rule here established shall apply only to cases arising out of future occurrences.

We affirm the judgment of the Court of Civil Appeals.

Affirmed.

SIMPSON, MERRILL, HARWOOD and BLOODWORTH, JJ., concur.

LAWSON, COLEMAN and McCALL, JJ., dissent.

HEFLIN, C.J., not sitting.

COLEMAN, Justice (dissenting).

Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So.2d 884, was decided by this court June 29, 1961. There, the defendant had appealed from a judgment for plaintiff in an action claiming damages for breach of an agreement '* * * to purchase a house and lot wherein it was Implied that the dwelling was of substantial construction and was built in a workmanlike manner. The breach * * * was that the house was not constructed in a workmanlike manner and that water drained from the bathroom facilities and emptied under the house without any drainage, and damage resulted.' (Emphasis supplied.) 272 Ala. at 415, 131 So.2d at 885.

This court said:

'The first argued assignments of error allege error in the overruling of the demurrer to the two counts of the complaint.

'(1) This presents a question of first impression in this state. The question may be posed: Is a warranty implied, as a matter of law, in a contract to purchase real estate, that the improvements located thereon were constructed in a good and workmanlike manner?

'The great weight of authority does not support implied warranties in real estate transactions but requires any purported warranties to be in written contractual form. (Emphasis Supplied) 92 C.J.S. Vendor & Purchaser § 578; 55 Am. Jur., Vendor and Purchaser, § 368; Thompson on Real Property, Vol. 8, § 4599. No decision has come to our attention which permitted recovery by the vendee of a house upon the theory of implied warranty.' (272 Ala. at 416, 131 So.2d at 885.)

This court then discussed eleven or more cases in support of its declaration of the law and further said:

'We feel that The rule of the cases cited above is sound, makes for certainty in the field of real estate law, and should prevail in this jurisdiction. Purchasers may protect themselves by express agreement embodied in their deeds, and Vendors may be certain of their position as to liability for the condition of premises they have sold. (Emphasis Supplied)

'* * *

'Since neither count stated a cause of action, it follows that the demurrer to both counts should have been sustained.

'The judgment of the circuit court is reversed and one is here rendered sustaining the demurrer.

'Reversed and Rendered. (Emphasis supplied.)'

In 1967, a contractor-builder appealed from a judgment for the owner '* * * for breach of a contract made with appellees to construct for them in a good and workmanlike manner a dwelling house * * *.' Carter v. West, 280 Ala. 603, 196 So.2d 718. The contractor relied on Druid Homes. This court affirmed the judgment for the owner and said:

'* * * Huston Carter expressly agreed to build the house in accordance with these specifications. He breached this express agreement. Cases like Druid Homes, Inc., supra, were not intended to indicate that there was no cause of action for the breach of an express agreement to construct improvements on real estate in a workmanlike manner. * * * It should be noted here that the plaintiffs did not sue on an implied warranty, but an express agreement made between them and Huston Carter whereby the latter agreed to build the house in accordance with agreed upon plans and specifications. * * * The contract sued on was not for the sale of land, but was for personal services, to be performed by one party for another. The evidence conclusively shows that the appellant breached this express contract. * * *.' (280 Ala. at 604, 196 So.2d at 720)

In 1969, plaintiffs appealed from a judgment of voluntary nonsuit in an action 'for * * * damages for breach of a contract for the Purchase of a house built by the Defendant, Joe J. Bedford, Jr., for the Plaintiffs * * *.' Livingston v Bedford, 284 Ala. 323, 324, 224 So.2d 873. This court affirmed the judgment favorable to defendant and said:

'* * * Consequently, we hold on authority of Druid Homes, that Count III does not state a cause of action and that the court did not err in sustaining demurrer thereto.' (284 Ala. at 327, 224 So.2d at 876)

In Central Stikstof Verkoopkanter, N.V. v. Walsh Steve. Co., 380 F.2d 523, the United States Court of Appeals, Fifth Circuit, affirmed a judgment for defendants, rendered by the ...