Hoye v. Century Builders, Inc.
Decision Date | 09 May 1954 |
Docket Number | No. 34435,34435 |
Citation | 329 P.2d 474,52 Wn.2d 830 |
Court | Washington Supreme Court |
Parties | John J. HOYE and Elizabeth Hoye, his wife, Respondents, v. CENTURY BUILDERS, Inc., a corporation, Appellant. . Sept, 4, 1958. Morrissey, Hedrick & Dunham and Robert K. Waitt, Seattle, for appellant. Stone, Hoover & Lind, Seattle, for respondents. FOSTER, Justice. Respondents, plaintiffs below, sued appellant, defendant below, to recover the purchase price of a lot plus the money paid on a contract with the appellant for the construction of a house on that lot. The prayer of the complaint is: 'Wherefore, plaintiffs pray that the court enter an order rescinding said contract and a judgment against the defendant for the sum of Eleven Thousand Four Hundred Ninety-four and 32/100 ($11,494.32) Dollars, for costs of suit, and for such other and further relief as to the court seems just and proper.' The controlling fact is stated in the appellant's brief in the following words: '* * * On or about |
Morrissey, Hedrick & Dunham and Robert K. Waitt, Seattle, for appellant.
Stone, Hoover & Lind, Seattle, for respondents.
Respondents, plaintiffs below, sued appellant, defendant below, to recover the purchase price of a lot plus the money paid on a contract with the appellant for the construction of a house on that lot.
The prayer of the complaint is:
'Wherefore, plaintiffs pray that the court enter an order rescinding said contract and a judgment against the defendant for the sum of Eleven Thousand Four Hundred Ninety-four and 32/100 ($11,494.32) Dollars, for costs of suit, and for such other and further relief as to the court seems just and proper.'
The controlling fact is stated in the appellant's brief in the following words:
Thus it is, in the language of the appellant's own counsel, that the respondents employed appellant to build a new house for them. It was in no sense the sale of a house already built.
The court found that, in the appellant's contract to build a home for the respondents, there was an implied warranty that it would be fit for human habitation. We agree. The measure of damages applied was the difference in value between the house in its uninhabitable condition and its value had it been properly constructed, less certain credits to the appellant not here material.
Appellant's first claim of error is that the trial court denied it a right to trial by jury. The argument is that the case was a suit in equity for rescission in which there is no right to trial by jury, but that such right came into being during the course of the trial when, it is claimed, the proceeding metamorphosed from a suit in equity to an action at law. 1 It is unnecessary to decide whether a case for rescission is a suit in equity or an action at law because the whole and complete answer to this assignment of error is that the appellant never filed a demand for jury as required by RCW 4.44.100. Unless such demand be timely filed, trial by jury is waived. 2
In the language of the appellant's counsel, the principal question raised is stated as follows:
'Whether or not there is an implied warranty of fitness for habitation of a custom-built dwelling house where the contract only called for work, labor and materials by the building contractor, and whether or not there is an implied warranty of fitness for habitation of any dwelling?'
Without so holding, it may be assumed, for present purposes, that the doctrine of caveat emptor applies to sales of real property and that, if the case presented the sale of a new, but nevertheless completed house, there would be no implied warranty of fitness. 3 The appellant thus states the issue in the following sentence:
'* * * Thus, the construction contract in question, being a contract for work, labor and materials, and not a sale, there can certainly be no 'implied warranty of fitness' for any purpose intended in any event.'
That issue was resolved adversely to the appellant's contention by White v. Mitchell, 123 Wash. 630, 213 P. 10. A contract to construct a new dwelling is one for work, labor and materials. Appellant held itself out as an experienced builder. It furnished the plans for the house. We have no hesitancy in saying, under the circumstances, the trial court was correct in holding that there was an implied warranty that the completed house would be fit for human habitation. The law is so stated in 38 Am.Jur. 661, § 20, and 17 C.J.S. Contracts § 329, p. 781. The supreme court of South Carolina recently summarized the applicable rule of law in the following passgae from its opinion in Hill v. Polar Pantries, 219 S.C. 263, 64 S.E.2d 885, 888, 25 A.L.R.2d 1086:
* * *'
This court said in McConnell v. Gordon Const. Co., 105 Wash. 659, 178 P. 823, 824;
* * *'
The uniform current of decisional law in the United States is in accord. Some of the more recent cases are collected in the margin. 4
Such, likewise, is the law in England. It is stated in 29 Halsbury's Laws of England (2d ed.) 464, 465, part 9, § 669, note r, as follows:
'* * * But it is otherwise if he sells a house to be erected or in course of erection, and then there is an implied warranty that it will be properly constructed and fit for habitation (Miller v. Cannon Hill Estates, Ltd., [1931] 2 K.B. 123; Digest Supp.; Perry v. Sharon Development Co., Ltd., [1937] 4 All E.R. 390, C.A.; Digest Supp.).'
In 1955, the Queen's Bench division of the high court of appeal in Jennings v. Tavener (1955), 2 All Eng.R. 769, 1 Weekly L.R. 932, had occasion to review the entire English law on the subject and reached the same result. The reason is nowhere better explained than by the King's Bench division in Miller v. Cannon Hill Estates, Ltd. (1931), 2 K.B. 113, in the following possage from the opinion in that case:
...
To continue reading
Request your trial-
J. Stiles, Inc. v. Evans
...both an implied warranty of habitability, such as Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963) and Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474, 476 (1958), and an implied warranty of construction in a good and workmanlike manner, such as Loma Vista Development Co. v. J......
-
Schipper v. Levitt & Sons, Inc.
...(Okl.Sup.Ct.1933); Weck v. A:M Sunrise Construction Co., 36 Ill.App.2d 383, 184 N.E.2d 728 (1962). See also Hoye v. Century Builders, Inc., 52 Wash.2d 830, 329 P.2d 474 (Sup.Ct.1958); Miller v. Cannon Hill Estates, Ltd., (1931) 2 K.B. 113; Bearman, 'Caveat Emptor in Sales of Realty--Recent ......
-
Conklin v. Hurley
...4 § 672.314, Fla.Stat. (1981). 5 See, e.g., Vanderschrier v. Aaron, 103 Ohio App. 340, 140 N.E.2d 819 (1957); Hoye v. Century Builders, Inc., 52 Wash.2d 830, 329 P.2d 474 (1958). These decisions were based in part on a series of earlier English cases. Miller v. Cannon Estates, Ltd., [1931] ......
-
Frickel v. Sunnyside Enterprises, Inc.
...WASHINGTON'S ASSAULT ON CAVEAT EMPTOR In Washington, the assault upon the doctrine of caveat emptor began with Hoye v. Century Builders, Inc., 52 Wash.2d 830, 329 P.2d 474 (1958). In Hoye, the plaintiff entered into a building contract with the defendant for the construction of a house. Due......