Elden v. Simmons, 52766

• Decision Date: 07 July 1981
• Docket Number: No. 52766,52766
• Parties: Don R. ELDEN and Verna L. Elden, Appellants, v. Raymond R. SIMMONS, Bernice L. Simmons, Harry L. Riggs, and Acme Brick Company, Appellees.
• Court: Oklahoma Supreme Court

Page 739

631 P.2d 739

1981 OK 81

Don R. ELDEN and Verna L. Elden, Appellants, v. Raymond R. SIMMONS, Bernice L. Simmons, Harry L. Riggs, and Acme Brick Company, Appellees.

No. 52766.

Supreme Court of Oklahoma.

July 7, 1981.

Appeal from the District Court of Rogers County; William J. Whistler, Trial Judge.

Certiorari Granted, Court of Appeals, Division No. 2.

We have previously granted certiorari in this case. Although we reach the same result as the Court of Appeals, we find it advisable to discuss the issues presented more in detail. We are asked to determine whether a Petition filed by the present owners of a "used home" states a cause of action in breach of the implied warranties of habitability and completion in a workmanlike manner, against the builder of the home and the manufacturer of bricks used in the home, which, as the result of an alleged latent defect, are crumbling, splintering and falling apart.

Holding that the duration of the implied warranties of habitability and completion in a workmanlike manner, which attaches to a new home, is controlled by the standard of reasonableness and does not necessarily terminate upon transfer of title, and further holding that privity of contract between the ultimate consumer (present owners of the home) and the manufacturer and/or builder of the home, is not necessary in order to bring an action for breach of implied warranty, we find that the Petition did state a cause of action for breach of warranty against the manufacturer of the brick used in the home, and against the home's builder. Accordingly, we reverse the trial court's sustaining of the manufacturer's and builder's demurrers to the Petition, and remand the matter to the District Court for further proceedings.

REVERSED AND REMANDED WITH INSTRUCTIONS.

William J. Dale, Bartlesville, for appellants.

Byron D. Todd and John S. Denney, Tulsa, for appellees, Raymond R. Simmons and Bernice L. Simmons.

John R. Carle of Carle & Tanner, Claremore, for appellee, Harry L. Riggs.

William B. Selman of Rhodes, Hieronymus, Holloway & Wilson, Tulsa, for appellee, Acme Brick Co.

BARNES, Vice Chief Justice:

In this cause, we are asked to determine whether the Amended Petition filed by two homeowners, Don and Verna Elden, stated a cause of action against the builder of the home, Harry L. Riggs, and the supplier of bricks used in the home, Acme Brick Company. The action filed by the Eldens was filed in the District Court of Rogers County, Oklahoma. That court sustained the demurrers to the Amended Petition, filed by the home builder and the brick manufacturer, as well as the previous owners, Raymond and Bernice Simmons, who had conveyed the property to the Eldens.

The Court of Appeals, Division No. 2, reversed the action of the trial court, holding that the Amended Petition did state a cause of action against both Acme Brick and the home builder, but did not state a cause of action against the Simmonses. Both Acme Brick and builder Riggs filed petitions seeking certiorari. These petitions were granted and certiorari issued by prior order of this Court. No petition for certiorari was filed by the Eldens, seeking review of the Court of Appeals' affirmance of the trial court's sustaining of the Simmonses' demurrer. This being the case, whether the petition stated a cause of action against the Simmonses is not before us for review, and the Court of Appeals' ruling on that issue is now final, and is now the law of the case.

We will first determine whether the Eldens' Amended Petition stated a cause of action against the builder-vendor of the home, Harry L. Riggs.

I.

In Jeanguneat v. Jackie Hames Const. Co., 576 P.2d 761 (Okl.1978), this Court, in abandoning the ancient doctrine of caveat emptor, held that the builder-vendor of a new home impliedly warrants that the new home is or will be completed in a workmanlike manner and is or will be reasonably fit for occupancy as a place of abode, and that such an implied warranty exists, as a matter of law. In so ruling, we held that such an implied warranty exists for a reasonable time.

The question before us today is whether such an implied warranty may be relied upon by one who is a subsequent purchaser of the home, and not the direct purchaser from the builder-vendor. Put another way, the question before us is whether an existing implied warranty of habitability terminates upon resale.

Recently, in Old Albany Estates v. Highland Carpet Mills, 604 P.2d 849 (Okl.1980), we held that a manufacturer of a carpet was liable for breach of a warranty of merchantability and fitness, even though there was no privity of contract between the ultimate purchaser and the manufacturer. In so holding, we stated:

"We hold a manufacturer may be held liable for breach of (an) implied warranty of merchantability or fitness for particular purpose under the Uniform Commercial Code without regard to privity of contract between the manufacturer and the ultimate buyer. Plaintiff, being in the chain of distribution, may maintain a direct action against the defendant (manufacturer) to recover the benefit of his bargain in replacement of the carpet...."

In the case at hand, the plaintiffs, present owners of the home, are the ultimate purchasers of the home, and thus in the vertical chain of distribution. Likewise, the contractor and builder of the home, Mr. Riggs, is also in the chain of distribution and, we hold, may be considered the manufacturer of the home. Under our ruling in Old Albany Estates, supra, a homeowner is permitted to maintain suit against a builder or manufacturer of the home for breach of warranty or merchantability and fitness. We see no reason to apply a different rule in situations such as the one before us, where the warranties...