Koehler v. Stenerson

• Decision Date: 05 May 1953
• Docket Number: No. 7928,7928
• Parties: KOEHLER et ux. v. STENERSON et al.
• Court: Idaho Supreme Court

Page 1101

260 P.2d 1101

74 Idaho 281

KOEHLER et ux. v. STENERSON et al.

No. 7928.

Supreme Court of Idaho.

May 5, 1953.

On Rehearing Sept. 29, 1953.

Gee & Hargraves, Zener & Peterson, Pocatello, for appellants.

O. R. Baum, R. M. Whittier, Mark B. Clark, Pocatello, for respondents.

PORTER, Chief Justice.

This is an action by respondents, plaintiffs below, to recover damages for alleged fraud in connection with a contract of purchase of a home to be built in Pocatello. Respondents' complaint was amended before and during the trial. It is lengthy and contains much repetitious and evidentiary matter. In order to properly present the questions involved in this appeal, we deem it necessary to summarize the material parts of the amended complaint.

It is alleged in the amended complaint that I. S. Stenerson, doing business under the firm name of Builtrite Homes, and the Smith-Marshall Agency, Inc., commenced a development within the limits of the City of Pocatello, known as the Northland Addition. That pursuant to a contract between said defendants, Stenerson agreed to construct and did construct therein certain homes known as the Builtrite Homes and more particularly the home of the plaintiffs. That Stenerson obtained the usual financial commitments for such homes; and the said Smith-Marshall Agency acted as the general fiscal agent for the Builtrite Homes, and prepared and handled the execution of the contracts of purchase and sale thereof.

That the Smith-Marshall Agency advertised for sale the homes built and to be built in such addition. That the advertisements run by the Smith-Marshall Agency in the issues of the Idaho Sunday Journal of Pocatello for June 18 and June 25, 1950, outlined the type and character of the homes and the locations thereof and the manner in which said homes were being built and the various facilities that went with said homes and, among other things, advertised:

'Paved streets, curbs, and gutters, city water, electricity, telephones (available), on bus route, sidewalks and curb to stoop, and that all the homes would be equipped with

'Youngstown kitchens, electric water heaters, Crane bathroom fixtures, insulation (floors and ceilings), conventional wood floors (asphalt tile throughout), weather stripped windows, automatic oil forced air furnaces (thermostatically controlled), Weiser hardware, asphalt impregnated insulation sheathing, dry wall interior construction, 2"' X 4"' studs, 2"' X 8"' floor joists;

and that such homes were built for Pocatello weather, * * *'.

That by reason of such advertisements, plaintiffs became aware that certain homes known as the Builtrite Homes were to be constructed. That they visited the so-called model home erected by the defendant Stenerson in the Northland Addition and which was being exhibited by the defendant Smith-Marshall Agency. That at such model home, agents of the defendants represented that any home constructed by prospective purchasers would be on the same type and floor plan as the model home and would contain the same type and kind of materials and equipment; and that the furnaces to be installed in said homes were of an adequate size and type to properly heat the homes in which they were to be placed.

That by reason of such representations made to plaintiffs and the advertisements in the newspaper and the inspection of the model home, the plaintiffs visited the Smith-Marshall Agency offices in Pocatello and stated they desired to purchase a home exactly as to type and kind and construction like the model home, and as shown by the plans and specifications exhibited to them at the time they inspected the model home. That they made the required down payment to the Smith-Marshall Agency which agency prepared the necessary contract and supervised its execution for the purchase and sale of a Builtrite Home.

'That the said plaintiffs herein, relying upon the advertisements and statements as made by the said defendants, Smith-Marshall Agency, Inc., and the said I. S. Stenerson, and believing that the said statements, oral and in writing, were true and that the said homes would be constructed as advertised and as stated by the said parties, and that the same would be ample and sufficient to withstand the Pocatello weather, entered into a written contract of purchase with said I. S. Stenerson, as of the 3rd day of August, 1950, at which time the said I. S. Stenerson and the said defendant, Smith-Marshall Agency, Inc., who drafted said contract and who prepared the same, and who caused the same to be signed, well knew, or should have known, that the said representations as made and as stated in the paper, were not true, and that the said statements were false, misleading and deceiving, and your said plaintiffs aver that the said defendants intended to mislead the said plaintiffs herein by reason of such statements.' (ff. 2190-2191.)

It is further alleged that the said home as constructed for plaintiffs was not constructed in accordance with the plans and specifications exhibited to plaintiffs and that the said workmanship was not as shown in said model home and that the materials used were not as used in the model home and that the furnace was not installed in the manner as shown in the model home; that the furnace was inadequate in size and improperly installed and required but did not have hearing ducts to the outer walls as shown in the model home. That to make the home comparable to the home which it was represented would be built, plaintiffs will be compelled to spend the following sums:

'For installing heating ducts in the kitchen, bedrooms and bathroom-- $182.00

To restore the insulation and place baffles around the ventilators-- 30.00

To correct the floors, thereby making the same level-- 558.00

To correct the window situation-- 60.00

To repaint the house-- 375.00

To pave the proportion of the street that should be paved, the sum of 264.00

To put in electric receptacle and ground wire-- 14.25'

And that plaintiffs by reason of said fraud and misrepresentations have been damaged in the total of said sums, to-wit, $1,483.25, for which sum plaintiffs pray judgment.

The defendant, International Oil Burner Company, did not appear in the action and is not involved in the judgment nor in this appeal. Defendant, Stenerson, and defendant, Smith-Marshall Agency, filed answers consisting of general denials. The cause was tried to a jury and resulted in a verdict in favor of respondents in the sum of $1,483.25. Judgment was entered accordingly. Motions for judgment notwithstanding the verdict and for new trial were made by appellants. Such motions were denied by the trial court. Appellants have each appealed from the judgment and from the orders of the court denying the motions for judgment notwithstanding the verdict and for new trial.

There are nine assignments of error with many subdivisions of each assignment. It would be impracticable in an opinion to discuss in detail all the contentions of appellants. While we have considered all the questions raised, we will only discuss those we feel merit mention.

Appellants first contend that the court erred in overruling their objection to the admission of any evidence by respondents on the ground that the amended complaint does not state a cause of action. In essence, the amended complaint alleges that appellants knowingly and falsely misrepresented in certain particulars set out in the amended complaint the kind and type of materials intended to be used in the construction of the home in question, and that the materials thereafter used were not of the kind and type as represented; and in particular, that the appellants knowingly and falsely represented that the furnace to be installed would have ducts to the outer walls, be thermostatically controlled and of sufficient size to properly and adequately heat such home in Pocatello weather. The amended complaint further alleges that respondents relied upon such representations and acted thereon to their damage. The facts thus pleaded allege the existence of all the requisite elements of fraud. The amended complaint states a good cause of action in fraud for damages. The trial court did not err in admitting evidence in support of the allegations of the amended complaint. Paulsen v. Krumsick, 68 Idaho 341, 195 P.2d 363; Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 206 P. 175, 27 A.L.R. 337; Nelson v. Hoff, 70 Idaho 354, 218 P.2d 345; Weitzel v. Jukich, Idaho, 251 P.2d 542; Cooper v. Wesco Builders, Inc., Idaho, 253 P.2d 226; Keane v. Allen, 69 Idaho 53, 202 P.2d 411; Merchants Ice & Cold Storage Co. v. Globe Brewing Co., 78 Cal.App.2d 618, 178 P.2d 503.

Appellant Smith-Marshall Agency contends proof is totally lacking that it committed fraud in any of the particulars charged in the amended complaint. Whether or not fraud has been committed is to be determined from all the facts and circumstances of the case. Penn. Mutual Life Ins. Co. v. Ireton, 57 Idaho 466, 65 P.2d 1032; Young v. California Ins. Co., 55 Idaho 682, 46 P.2d 718; Pocatello Security Trust Co. v. Henry, supra. The transcript in this case consists of two volumes containing a total of 816 pages. It would be impracticable to summarize all the evidence offered in proof of the allegations of the amended complaint bearing on fraud on the part of the Smith-Marshall Agency. We must content ourselves with saying that the transcript discloses substantial, though at times conflicting, evidence to sustain the charges of fraud against the Smith-Marshall Agency. We have held repeatedly and uniformly that this court will not disturb the verdict of a jury where it is sustained by substantial though conflicting evidence. Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651.

After filing answers, appellants made a demand upon respondents for a bill of particulars setting out the items of damage and the amount of each claimed by respondents. Respondents did not furnish such bill of...