Mitchem v. Johnson
| Decision Date | 29 June 1966 |
| Docket Number | No. 40023,40023 |
| Citation | 7 Ohio St.2d 66,218 N.E.2d 594 |
| Parties | , 36 O.O.2d 52 MITCHEM et al., Appellants, v. JOHNSON, d. b. a. Wallace Johnson Co., Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Where a warranty is breached by the builder and vendor of a real-property structure, he is subject to liability for damages proximately caused by such breach, and the recovery of damages for such breach does not depend on his negligence. (Paragraph two of the syllabus of United Pacific Ins. Co. v. Balcrank, Inc., 175 Ohio St. 267, 193 N.E.2d 920, approved and followed.)
2. An implied warranty in favor of the vendee of an uncompleted real-property structure that it will, when finished, be suitable for the purpose intended will not be imposed upon the vendor who constructed it and undertakes to complete it as a part of the executed contract for sale of the real estate.
3. A duty is imposed by law upon a builder-vendor of a real-property structure to construct the same in a workmanlike manner and to employ such care and skill in the choice of materials and work as will be commensurate with the gravity of the risk involved in protecting the structure against faults and hazards, including those inherent in its site. If the violation of that duty proximately causes a defect hidden from revelation by an inspection reasonably available to the vendee, the vendor is answerable to the vendee for the resulting damages.
For the sum of $31,000, plaintiffs (appellants) purchased a new residence from the defendant (appellee), who constructed it. When the purchase price was paid and the title transferred to plaintiffs, the structure was not complete, and defendant agreed to finish the house as a part of the transaction. Plaintiffs have no complaint as to defendant's work in completing the house. Beyond this point, however, the facts are in dispute.
Plaintiffs sued the defendant because, they allege in substance, the lot and residence were located in an area which had surface-water problems, and, notwithstanding that fact and unknown to the plaintiffs, the residence was constructed on a low portion of the lot and without the installation of foundation drainage tile or any system to protect the structure from the surface-water problems, 'the same being required by good workmanship' (emphasis supplied); 'defendant did not use proper roofing, sheeting and insulating materials and did not erect and install the same properly, or in the exercise of good workmanship, resulting in the installation of a defective roof' (emphasis supplied); and, because of these conditions, surface waters accumulated under the residence, saturated the foundation and roof support members, and seeped up and into the roof insulation and roofing portions of the structure, which, in turn, caused the latter to warp, open, pull apart and permit water to seep into the residence. These conditions required the roof and related parts of the structure to be removed and replaced 'with proper materials' (emphasis supplied).
Plaintiffs allege further that, during periods of heavy rainfall and high soil moisture, the area around the residence structure became sodden and impaired the effectiveness of the septic tanks, rendering the interior toilet facilities partially unusable.
Plaintiffs attempted to correct all these 'defects and poor workmanship' (emphasis supplied) but without avail. Plaintiffs claim that as a result of defendant's breaches 'of his implied warranties to construct and wholly complete said residence in a proper and workmanlike manner, using proper materials throughout' (emphasis supplied), plaintiffs were damaged in the amount of $3,800.
In his answer, defendant presents two affirmative defenses beyond a general denial of the matters disputed: (1) That certain modifications made in the structure by the plaintiffs were the real cause of their problems, and (2) that the damages sustained were the result of natural conditions in the land over which defendant had no control. By reply, the plaintiffs deny the statements contained in the separate defenses and, on the issues thus joined, a trial was had.
Before argument, the jury was given a special written instruction reading in pertinent part as follows:
The jury returned a verdict for the plaintiffs for $2,258.95. On appeal, the Court of Appeals for Lucas County reversed the judgment and remanded the cause for a new trial for the sole reason that the special written instruction was improper and prejudicial. Two other assigned errors were not considered in view of that judgment.
Richard H. Conn, Toledo, for appellants.
Rowley & Leahy and Paul J. Leahy, Toledo, for appellee.
The record brought to our attention under Rule IV of our Rules of Practice, and relied upon by plaintiffs, consists only of the petition, the answer, the reply, the special written instruction given before argument, and the judgment entries of the lower courts. Thus, the singular question presented is whether an implied warranty, in favor of the vendee of an uncompleted structure that it will, when finished, be suitable for the purpose intended, should be imposed upon the vendor who constructed and who undertook to complete it as a part of the executed contract for the purchase and sale of the real estate.
In the Vanderschrier case, (Vanderschrier v. Aaron), 103 Ohio App. 340, 140 N.E.2d 819, at best, a 'bargain' was implied that work to be completed on real estate 'would be done in a reasonably efficient and workmanlike manner,' notwithstanding that the promise to complete was part of an executed contract of sale for the purchase of the realty. The implied 'bargain' was held to extend beyond, and not to be extinguished by, the payment of the purchase price and the transfer of title. See also, annotation, 84 A.L.R. 1008, and the cases cited therein.
A contract to furnish labor and materials is not a sale if the finished product is not personal property. The requirement of workmanlike performance is no more than that which the law imposes upon the builder of a structure on land owned by another, unless, of course, a higher duty may be fairly implied from the terms of the contract itself. 17A C.J.S. Contracts § 515, p. 851.
In Flannery v. St. Louis Architectural Iron Co., 194 Mo.App. 555, 558, 185 S.W. 760, 761, we are of the opinion that the law is correctly stated:
"It is the duty of the builder to perform his work in a workmanlike manner; that is, the work should be done as a skilled workman would do it; the law exacting from a builder ordinary care and skill only.' 6 Cyc. 59. It is certain that the builder is not an insurer. Nor is he required to respond to the owner on account of defective construction, except in accordance with the precepts of ordinary care, unless the obligation is affixed upon him through a special contract to do so.
If, as to work to be done and material to be furnished on real estate in futuro, the law imposes no higher standard than a 'reasonably efficient and workmanlike manner,' and the duty required is no more and no less than ordinary care 'except perhaps in the case of an extraordinarily hazardous transaction), we are not persuaded by...
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