Druid Homes, Inc. v. Cooper, 1 Div. 913
Decision Date | 29 June 1961 |
Docket Number | 1 Div. 913 |
Citation | 131 So.2d 884,272 Ala. 415 |
Parties | DRUID HOMES, INC. v. Charles F. COOPER et ux. |
Court | Alabama Supreme Court |
Tonsmeire & McFadden, Mobile, for appellant.
M. A. Marsal, Mobile, for appellees.
This appeal is from a judgment of $4,500 based upon a complaint claiming damages for the breach of a written agreement dated December 1, 1955, 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 complained of 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.
During the trial, a second count was added to the complaint, claiming damages for breach of an oral agreement allegedly made on November 11, 1955, in which appellant impliedly warranted that the house was constructed in a workmanlike manner.
The complaint was not filed until October 6, 1958. This is important only to say that a written warranty for one year was given that the building was in substantial conformity with approved plans and specifications of the Administrator of Veterans Affairs. Plaintiff received his deed, this warranty and occupied the house in December, 1955, rendering any action on the written warranty unavailing after December, 1956.
The first argued assignments of error allege error in the overruling of the demurrer to the two counts of the complaint.
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. 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.
Most of the cases on this point cite Williston on Contracts, Vol. 4, § 926 (Rev.Ed.), which states:
In Dennison v. Harden, 29 Wash.2d 243, 186 P.2d 908, 912, the court said:
'Without discussing under what circumstances implied warranties may be relied upon in the sale of personal property, we will dispose of appellant's argument on this point by saying that we have found no cases, and appellant has cited none, which recognize that there is such a thing as an implied warranty in the sale of real estate. In Pollard v. Lyman, 1 Day, Conn., 156, 2 Am.Dec. 63, certain land was found to be of no value and it was urged that there was an implied warranty of quality. The court said:
"As to the doctrine of implied warranty, that the article sold is of the ordinary quality of articles of its kind, or equal throughout to the sample seen, it applies only to articles susceptible of a standard quality, or which are...
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Butler v. Olshan, 6 Div. 113
...conclusions of the pleader. United States Health & Accident Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; but see Druid Homes, Inc. v. Cooper, 272 Ala. 415, 417, 131 So.2d 884. On the other hand, when the complaint does not contain a substantial cause of action, there can be no recovery, alth......
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Centraal Stikstof Verkoopkanter, NV v. Walsh Steve. Co.
...of workmanlike construction exists in the case of the sale of a house, or in similar real estate transactions. Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So.2d 884 (1961). Since Walsh's contract limited its liability for damage to cargo to the physical damage resulting from its negligen......
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Teer v. Johnston
...stated: “ ‘Alabama retains the caveat emptor rule with regard to the resale of used residential real estate. Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So.2d 884 (1961). Although we have abrogated the caveat emptor rule in sales of new residential real estate by a builder/vendor, Cochra......
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Staff v. Lido Dunes, Inc.
...plaintiff purchased. In addition to the New York cases cited in the text, the following cases support that rule: Alabama Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So.2d 884 Arizona Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818 Georgia Walton v. Petty, 107 Ga.App. 753, 131 S.E.2d 655 Ill......