Paffile v. Sherman
| Decision Date | 22 January 1962 |
| Docket Number | No. 8976,8976 |
| Citation | 84 Idaho 63,368 P.2d 434 |
| Parties | Eugene PAFFILE and Charlotte I. Paffile, Plaintiffs-Appellants, v. Margaret E. SHERMAN, Defendant-Respondent. |
| Court | Idaho Supreme Court |
D. K. Worden, Jr., J. H. Bengston, Lewiston, for appellant.
Clements & Clements, Lewiston, for respondent.
Under date of January 7, 1957, the parties to this action entered into a written contract whereby respondent agreed to sell and appellants agreed to purchase a parcel of land situate in Lewiston, Idaho, for the principal sum of $28,000.00. Upon said land was situate a recently constructed dwelling which constituted the primary consideration for the contract. Upon executing the contract appellants took possession and paid $2000.00 of the purchase price. Thereafter appellants paid an additional sum of $3125.00 under the contract.
Construction of the dwelling was commenced about August, 1955. During the course of construction, in January, 1956, the structure was damaged as a result of some settling of the foundation, principally the north wall. Said damage was repaired and construction was completed about April, 1956.
Appellants testified that there was some settling of the foundation during the spring of 1957 and the evidence is undisputed that on July 3, 1958, a part of the wall settled approximately four inches. It became necessary to repair the damage occasioned by the settling of the foundation and the parties disagreed as to who should pay the cost of such repair, which amounted to $1600.00. Respondent contended that such cost should be borne by appellants and added to the principal payable under the original contract. Appellants refused to assume such obligation and on August 10, 1958, vacated the premises.
On September 3, 1958, respondent's attorney mailed written notice to appellants, stating that they were in default under the terms of the contract and further notified appellants that if they wished to reinstate the contract it would be necessary, among other things, for them to 'immediately execute the supplemental agreement to add the $1600.00 repair bill to the balance due on the contract'. Appellants made no effort to pay the delinquent installments or taxes and refused to execute the supplemental agreement.
On December 9, 1958, appellants' attorney wrote respondent a letter notifying respondent that appellants rescind the contract of purchase upon the grounds that appellants' execution thereof was secured through misrepresentation as to the physical condition of said premises and also failure of consideration. By said letter demand was made for return of all money paid by appellants under the contract, together with the sum of $1212.92 expended by appellants in the improvement of the premises involved. Appellants thereby notified respondent that they would surrender possession of the premises on December 12, 1958, and agreed to tender a deed quitclaiming any interest of said appellants in said premises upon receipt of the money requested.
On January 15, 1959, appellants filed this action seeking rescission of the contract, recovery of the monies expended, together with exemplary damages in the amount of $2000.00. The trial court, sitting without a jury, found in favor of respondent and entered judgment accordingly, from which this appeal is taken.
There is no allegation or proof that appellants were misled or deceived as a result of any statement made by, or any conversation or discussion engaged in, by respondent. The principal allegations of appellants' complaint alleging grounds for rescission of the contract are as follows:
'That unknown to plaintiffs, the dwelling house had previously been erected by defendant upon loose earth, commonly called 'fill ground' and that said fill ground was not suitable upon which to construct a dwelling house of the kind constructed by defendant; that defendant knew at the time she undertook construction of said dwelling house that said fill ground was entirely unsuitable for the construction of a dwelling in the manner undertaken; that plaintiffs were unaware of the true condition of the premises at the time of the execution of the above referred to agreement, and would not have entered into said agreement had they been aware of such facts; that defendant was aware of such facts and the true condition of the premises, but concealed and suppressed such facts from plaintiffs for the purpose of inducing plaintiffs to enter into such agreement.'
Two of the essential elements to appellants' cause of action which they must establish are (1) that the dwelling involved had been erected upon loose earth commonly known as 'fill ground' which was not suitable for such construction and (2) that such fact was known to respondent and she fraudulently concealed and suppressed such fact from appellants. Regarding these issues the trial court found:
Appellants strenuousy challenge such finding and call attention to and quote several portions of the record which support their contention. However, a thorough examination of the record shows that the evidence is substantial, though conflicting, on these issues in support of the court's finding.
Respondent owned the subject property for approximately ten years prior to its sale to appellants and respondent specifically denied that any fill earth was placed upon the area occupied by the dwelling in controversy during her ownership.
The evidence is convincing that a ravine or gully formerly existed within the area of the property involved and that fill earth has at times during the previous 25 or 30 years been put into it. Respondent, together with a number of other witnesses, testified to the existence of such a ravine but there is substantial variance in the testimony of such witnesses as to its exact location. One witness stated that the ravine existed immediately under the north wall of the subject building, while another identified it as being 50 ft. north of the property involved. Respondent testified that the ravine into which fill earth had been...
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