Hammaker v. Lowe, 5633

• Decision Date: 04 September 1953
• Docket Number: No. 5633,5633
• Citation: 1953 NMSC 80,261 P.2d 129,57 N.M. 585
• Parties: HAMMAKER et al. v. LOWE.
• Court: New Mexico Supreme Court

Page 129

261 P.2d 129

57 N.M. 585

HAMMAKER et al. v. LOWE.

No. 5633.

Supreme Court of New Mexico.

Sept. 4, 1953.

Rehearing Denied Oct. 9, 1953.

McAtee & Toulouse, Albuquerque, for appellant.

Richard C. Losh, Albuquerque, for appellees.

COMPTON, Justice.

Appellant appeals from a judgment in an action for damages for the alleged false and fraudulent representations made by his agent in the sale to appellees of certain houses and lots in the City of Albuquerque.

Appellant listed the houses for sale with local realtors, Hatchell and Miller, while they were under construction. C. R. McWhorter, who was employed as a salesman by the Hatchell and Miller Agency, procured appellees as purchasers therefor. The complaint alleges that McWhorter represented that the houses were of merchantable quality and free from latent defects; and appellees relying upon such representations, were induced to purchase the four houses in question to their injury. The allegation was met with a general denial. As an affirmative defense, appellant pleaded the statute of frauds and the rule caveat emptor.

The findings material to a decision, are:

'IV. That C. R. McWhorter was at the time of these transactions employed as a salesman by Hatchell and Miller; that while in the course of his employment as a salesman with Hatchell and Miller, C. R. McWhorter, in procuring the sale of the aforesaid houses to the parties plaintiff, made the following representations: 'That each house was very well built, a good home and built of 'better material' than required and that all defects which might occur would be guaranteed for one year; that Earl Lowe was the contractor who built the houses.'

'V. That plaintiffs relied on these representations and would not have purchased the said respective houses had these representations not been made.

'VI. That defendant, Earl Lowe, is not a licensed general contractor.

'VI(a). That the houses were poorly constructed and of poor materials and will require additional labor and materials and expense in the following amounts:

'William P. Hammaker, 613 S. Cagua, $148.25;

E. C. Rogers, 605 S. Cagua, $154.50;

Dan M. Burrola, 617 S. Cagua, $129.50;

Ira W. Noble, 601 S. Cagua, $107.25.'

The court thus concluded 'that these representations were materially false and known to be false by defendant, Earl Lowe.' Appellant knew the houses were being purchased subject to approval by Veterans Administration Authority. A construction analyst from that office inspected the houses shortly after their completion and they were then found below the required specifications. He testified they were defective both in workmanship and material, in the following respect:

'Ira W. Noble--* * * The kitchen linoleum was laid on a 1 by 6 subfloor in lieu of a 1 by 4. The garage door was poorly constructed and poorly hung. The bedroom sash cam has threads stripped and needs replacing. The door jambs in the living room and garage show evidence of needing renailing to the subfloor as there is evidence of motion occuring while the door is in operation. Plaster cracks in the kitchen and living room show slight settlement and excessive shrinking. Electrical receptacles are loose, may be a fire hazard. Kitchen cabinet drawers are warped, need refinishing. Weather stripping on front and kitchen doors installed wrongly. The linoleum on the top of the kitchen cabinet base is warped the same as the floor.'

'William P. Hammaker--Garage door poorly hung and constructed. Linoleum laid over 1 by 6 t and g flooring. Door jambs...