Crum v. McCoy

• Decision Date: 21 June 1974
• Citation: 41 Ohio Misc. 34,322 N.E.2d 161
• Parties: , 70 O.O.2d 76 CRUM et al. v. McCOY et al.
• Court: Ohio Court of Common Pleas

Page 34

41 Ohio Misc. 34

322 N.E.2d 161, 70 O.O.2d 76

CRUM et al. v. McCOY et al.

Franklin County Municipal Court, Ohio.

June 21, 1974.

Robert W. Phillips, Columbus, for plaintiffs.

Robert L. Herron, Columbus, for defendants and third party plaintiffs.

William F. Brown, Columbus, and Charles E. Westervelt, Jr., Westerville, for third party defendants.

WEST, Judge.

The plaintiffs, Mr. & Mrs. Crum, brought from the defendants, Mr. & Mrs. McCoy, for $26,000, a farmhouse as a residence for themselves and their children.

The complaint alleged defendants had removed drapes valued at $75 which under the terms of the contract were to be included in the sale. The complaint further alleged the defendants, with intent to mislead plaintiffs, failed to reveal hidden defects in the water supply system and in the sewage system and asked for $1,640.76 special damages and $5,000 punitive damages.

Defendant sellers answered denying the material allegations of the complaint and filed a third party complaint against the other four defendants who were the real estate salesmen and brokers involved in the transaction. The third party complaint alleges that all negotiations for sale of the real estate were conducted by the third party defendants who knew of the water pressure problem but failed to advise the buyers. The sellers asked for judgment against the real estate brokers and their salesmen for any amount that might be adjudged against the sellers in favor of the buyers.

The court had the assistance and cooperation of four very able lawyers who represented their clients well, presented their cases in an orderly manner, researched the law and submitted well prepared briefs with proposed findings of fact and conclusions of law. The work of these fine lawyers has been most helpful.

From the evidence the court finds that McCoys listed their property for sale with third party defendants, Westerville Realty and Leslie Goodman who is the principal of that firm. Mr. McCoy explained the problem with the water system. They had to go to Westerville to do their laundry, the pump frequently went dry and had to be primed and Mr. McCoy instructed that the truth be told about the water to prospective buyers as he did not want people lied to as he was.

Mr. Goodman noted on his house listing form and on his brokers information card: 'Water pressure not sufficient for washer-storage tank could solve problem.'

He prepared a listing card for the Multiple Listing Service but neglected to put any information on this card about the water problem. His explanation was that there was not enough room on the M.L.S. card.

Mr. & Mrs. McCoy and their five children aged 8 to 18 had lived in the subject property about five years. They never had any problems with the leach bed on the premises. Sewage backed up once, but they needed only the usual maintenance for cleaning the septic tank. They had a serious water problem. Flushing the toilet three times left them out of water and they could not take more than two showers in succession. They had a washer and dryer in the kitchen but not enough pressure to use the washer, so it was not connected. They did their washing at a laundromat in Westerville and dried it at home.

The water system included a well in the back yard approximately 68 feet deep in a pit with a lid covered by sod, a jet action pump and a 12 gallon storage tank located in the crawl space under the house which was reached through a closet in the bedroom. The pump ran constantly when water was being used, it worked well even when water in the well was low and it kept running even after it had pumped out all the water.

Plaintiffs, Mr. & Mrs. Crum, were selling their home through the third party defendant, Whit Dillon Realty, Inc. and its salesman, third party defendant Robert Jones.

Plaintiffs were in the market for a rural home. Mr. Jones saw the M.L.S. card on the McCoy property and called Mr. Goodman to arrange for a showing. Mr. Goodman failed to impress on Mr. Jones that there was a water problem. Mr. Jones had only the information on the M.L.S. card which he showed to the buyer.

Plaintiffs were shown the McCoy home by Mr. Jones and took particular note of the nice drapes with ties and valance which complimented the house beautifully. The McCoys were not home at the time Mr. & Mrs. Crum looked at the property. Two of the McCoy children were there. Plaintiffs made what the court finds was a diligent inspection of the property. They saw the washer and dryer with a pile of clean laundry stacked on the washer. They did not notice the washer was not connected. Mr. Crum tried the water faucets, flushed the toilet twice, observed a satisfactory flow of water, noted it was rusty but the toilet worked well. He did not locate the crawl space or the tank. He did locate the well but did not pull the lid and did not inspect the well or the pump.

The property was listed for $28,000 and through Mr. Jones, plaintiffs made an offer of $24,000. Third party defendant, Mr. Goodman, negotiated a counter offer from the McCoys of $26,000 which the buyers accepted.

The contract provided that the consideration shall include all drapes. The drapes, ties and valance were missing when the buyers took possession and some inappropriate drapes had been substituted. The court finds from the evidence the reasonable value of the drapes which were taken was $65.

The sellers never saw the buyers until the closing and there was no conversation then about the water problem. The third party defendant, Mr. Goodman, never had a direct conversation with the buyers but it was he the sellers entrusted with the duty to make known to the buyers the latent defect in the water system.

After the closing the buyers learned of the water problem. They sought the advice of experts to correct it and after running out of water and having to prime the pump eight times in a three week period they had another well dug which was...