Gay v. Cornwall
| Citation | 6 Wn.App. 595,494 P.2d 1371 |
| Decision Date | 22 March 1972 |
| Docket Number | No. 411--II,411--II |
| Parties | Jean Walters GAY, Respondent, Cross-Appellant, v. John R. CORNWALL and Phyllis Cornwall, his wife, Respondents, and Elmo Cecil Willoughby and Jane Doe Willoughby, his wife, Appellants. |
| Court | Court of Appeals of Washington |
Warren F. Andrews, Tacoma, for appellants.
James M. Stewart and Ralph I. Thomas, of Stewart & Thomas, Inc., P.S., Montesano, for cross-appellant and respondent.
Lester Stritmatter, Hoquiam, for respondent.
The basic issue presented by this appeal is whether or not an implied warranty of fitness flows from the builder of a new house to the first purchaser-occupant where the premises have been sold by the owner prior to completion. We hold that it does.
The house in question was built by the defendant, Elmo C. Willoughby, in the City of Montesano on a lot owned by a party named Childs. Willoughby originally agreed to build for Childs, but after construction had begun Childs sold te property to Mr. and Mrs. John R. Cornwall, also named as defendants here. The plaintiff, Jean Walters Gay, purchased from the Cornwalls before the house was completed, and she was the first to occupy it.
It was not until after she moved in that Mrs. Gay began to discover the defects in the house. Perhaps the most serious defect was the roof. It developed so many leaks that 100 tin shingles were required to repair it temporarily. The many leaks had, in the meantime, caused staining and other damage in many rooms of the house. Because the chimney had been improperly flashed, serious leaks developed in the area of the fireplace and water collected on the mantle. Water leaked into and ran across the main electrical control panel for the house, causing electrical problems. The plumbing was defective in materials and installation and will, along with the roof, require major repairs. Vents were not connected between the attic and the roof, permitting pipes to vent into the attic and permitting rain to enter through the openings in the roof. The sewer pipe beneath the house broke and accordingly, raw sewage was dumped into the crawl space. Mrs. Gay also had problems with the furnace. It overheated and had to be operated manually. She feared the overheating was a fire danger and had to turn off the furnace whenever she left the house. The fan motor burned out and had to be replaced and finally the whole furnance was replaced. On the outside of the house, gutters were too short and water from the roof drained into the yard. A new drainfield for the driveway had to be constructed when the inadequate drainfield installed by Willoughby washed away. The external paint was too thin and the house required repainting.
Mrs. Gay brought this action naming both the builder, Willoughby and the Cornwalls, from whom she had purchased the property, as defendants. The trial court dismissed the Cornwalls from the action and entered judgment against the defendant Willoughby for $2,000, which was determined to be the cost of remedying the defects. The trial court held (1) there was an implied warranty running from the builder to plaintiff that the dwelling would be fit for its intended purpose and (2) Willoughby had breached the warranty because there were so many defects in the house that it was not habitable without extensive repairs. The court further concluded that privity of contract between defendant Willoughby and the plaintiff was not necessary and that the Cornwalls, having complied with the earnest money agreement executed with plaintiff, should not be held liable for the damages when the defects were found to have been hidden from them as well as from plaintiff.
On appeal, defendant Willoughby raises the contention that recovery on an implied warranty theory was improper in the absence of privity between himself and Mrs. Gay. It does not appear from the record that Mrs. Gay had any express agreement with Willoughby with regard to construction of the house. She purchased the house from the Cornwalls while it was in the course of construction. Apparently the Cornwalls purchased the house at the suggestion of Willoughby, intending to occupy it temporarily while their permanent residence was being readied. The Cornwalls had purchased Childs' equity and had assumed his mortgage. There appears from the record to have been a written agreement between Childs and Willoughby, but it is unclear what arrangement the Cornwalls had with...
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Montgomery v. Engelhard
...Atherton Condo. Apartment–Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 520, 799 P.2d 250 (1990). In Gay v. Cornwall, 6 Wash.App. 595, 494 P.2d 1371 (1972), the court extended the implied warranty to a house that suffered from numerous water leaks, despite the cost to repair......
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Frickel v. Sunnyside Enterprises, Inc.
...is limited to the sale of new houses. See Klos, at 568, 554 P.2d 1349; House, 76 Wash.2d at 436, 457 P.2d 199; Gay v. Cornwall, 6 Wash.App. 595, 597, 494 P.2d 1371 (1972). Many jurisdictions impose a similar limitation on the warranty. See, e.g., Carpenter v. Donohoe, 54 Colo. 78, 388 P.2d ......
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Sewell v. Gregory
...275 S.C. 395, 271 S.E.2d 768; Gupta v. Ritter Homes, Inc., 646 S.W.2d 168 (Tex.1983); Moxley, 600 P.2d 733; see Gay v. Cornwall, 6 Wash.App. 595, 494 P.2d 1371 (1972). III. The Appellants may put on their proof; it is up to the jury to determine the reasonableness of their claims. The Appel......
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Burbo v. Harley C. Douglass, Inc.
...Those violations resulted in defects. The defects let the elements in and show visible, if not dire, foundation and support problems. In Gay v. Cornwall, a leaky roof requiring extensive repairs violated the implied warranty of habitability. Gay v. Cornwall, 6 Wash.App. 595, 596, 494 P.2d 1......
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Chapter 5
...Builders, Inc., 303 So.2d 466 (Miss. 1974). Nevada: Calloway v. City of Reno, 993 P.2d 1259 (Nev. 2000). Washington: Gay v. Cornwall, 494 P.2d 1371 (Wash. App. 1974). [85] Id.[86] Id.[87] See, e.g.: First Circuit: Brown Daltas & Associates, Inc. v. General Accident Insurance Co., 844 F. Sup......