Pinger v. Guaranty Inv. Co.

• Decision Date: 07 October 1957
• Docket Number: No. 22551,22551
• Citation: 307 S.W.2d 53
• Parties: Sidney R. PINGER and Alyce M. Pinger, Plaintiffs-Defendants, v. GUARANTY INVESTMENT CO., a corporation, Defendant, L. E. Hotaling and Leonard A. Lamar, individually and co-partners d/b/a Hotaling-Lamar Realty Company, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 53

307 S.W.2d 53

Sidney R. PINGER and Alyce M. Pinger, Plaintiffs-Defendants, v. GUARANTY INVESTMENT CO., a corporation, Defendant, L. E Hotaling and Leonard A. Lamar, individually and co-partners d/b/a Hotaling-Lamar Realty Company, Defendants-Appellants.

No. 22551.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1957.

Barnett & Skeer, Kansas City, for appellants.

E. E. Thompson, F. Russell Millin, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for respondents.

SPERRY, Commissioner.

This is a suit for damages alleged to have resulted to plaintiffs growing out of the purchase of a house from defendants. The action is based upon false representations. Verdict and judgment for plaintiffs against all defendants, for compensatory damages, in the amount of $5,400. Defendants Hotaling and Lamar appealed.

Defendant Guaranty Investment Company (hereafter referred to as corporation) was engaged in Kansas City, in the construction of houses for sale. Defendants Hotaling and Lamar, hereafter referred to as appellants, were partners in the real estate business and had an exclusive contract with the corporation for the sale of all of their houses.

The evidence discloses that the corporation contracted to sell a house, to be constructed at 9126 Holmes, to Mr. and Mrs. Jacobson. The Jacobsons testified that they paid $300 on the purchase price and, after the house was completed, discovered that the basement walls had settled and cracked so that they could see the house across the street, from inside the basement. Lamar sated to them that the house had settled and the basement had been repaired two or three times. They notified the corporation and appellants of the condition they had learned of, refused to accept the house, and demanded back their money. The corporation, thereafter, again 'fixed' the cracks in the basement walls and in the floor.

Plaintiffs, without any knowledge of its damaged condition, sought to buy the house and Lamar showed it to them. They had had no experience whatever in purchasing real estate. They said Lamar told them the foundation rested on solid rock which had been blasted; that the foundation and walls were solid; that it could not settle. They stated that when they inspected the basement it was late in the evening, near dusk; that the walls were coated with some white substance and the floor was painted blue; that they did not see any cracks, and relied on Lamar's representations. They purchased the house for $13,900, and took possession, paying $500 down on the property. They stated that, afterward, the door upstairs got out of line and they discovered that the foundation had settled, that the basement walls and floor were badly cracked; that the cracks had been filled and painted over; and that the cracks were widening and the house was settling further; that they complained to appellants, and tried to contact the corporation; that they could get no relief from any of the parties; that one crack in the basement wall opened two inches wide and they found newspapers stuffed into some of the cracks, with filling and paint over them. They spent $375 in an effort to correct the defects, but the cracks reappeared. They then employed another contractor and paid $926 for further repairs, but the cracks again opened, although not so badly.

The testimony was overwhelmingly to the effect that the condition complained of was well known to all defendants, long prior to the sale made to plaintiffs. In fact, such knowledge is not in dispute. There was evidence from which a jury could have found that the true condition of the property was deliberately concealed from plaintiffs, that the house was represented to be well and solidly built, with the foundation resting on solid rock so that it would never settle; and that plaintiffs innocently relied on its being soundly built and in sound condition. There was substantial expert testimony to the effect that the difference between the reasonable market value of the house, had it been in the condition represented, and its value in the condition it actually was in, was $5,400.

Appellants offered testimony to the effect that, while the cracks had been repaired, they were plainly visible to any observant person who looked. They denied that the condition of the house was in any manner misrepresented. Lamar stated that when he showed the house to plaintiffs Mrs. Pinger asked about the cracks, what caused them; that he told her the house had settled; that it might have been caused by drought conditions; that he doubted it would settle again but did not know. He admitted that Hotaling called his attention to the cracking; that he inspected it; that he knew that it had been repaired two or three times before plaintiffs inspected the house.

One ground relied on by appellants in their motion for new trial was that juror Lofstrom, on voir dire, had failed to answer their query as to whether any juror was acquainted with Mr. Millin (one of plaintiffs' attorneys), when, in fact, said juror well knew the attorney. They contend that, had they known the truth as to this matter, they would have stricken Lofstrom's name, that they did not have a fair trial as a result of his failure to answer. With the motion they filed several affidavits to the effect that Millin and Lofstrom had been well acquainted, for 27 years. One of said affidavits was that of Mr. Capen, Jr.

Plaintiff filed counter affidavits. They also offered the testimony of Mr. Capen, Jr., whose affidavit appellants had filed. Mr. Capen stated that he had not seen Mr. Millin for 26 years; that he knew Millin and juror Lofstrom when witness was about 5 years of age but had not seen Lofstrom since; that he could not identify either Lofstrom or Millin; that he did not know whether Millin and Lofstrom were well acquainted now. Plaintiffs also offered the testimony of juror Lofstrom, who testified to the effect that he had known Millin 27 years before, when they were small boys, living in the same neighborhood; that he had not seen Millin for 27 years and did not recognize him at the trial; that he heard his name mentioned on voir dire but that he did not connect the name with a small boy he knew 27 years before.

Mr. Millin testified that he knew juror Lofstrom some 27 years prior to the trial, but that he did not remember it at any time during the trial, and did not recognize Lofstrom during the trial; that he had not seen Lofstrom, to know him, since they were small boys in the same neighborhood.

Appellants filed and offered the affidavit of Eugene Lofstrom, a brother of the juror, as rebuttal evidence. Upon objection that it was offered out of time and did not constitute evidence it was rejected. Complaint is made of that ruling.

Section 510.350 RSMo 1949, V.A.M.S., provides that the court may permit reply affidavits. Admission of the affidavit was within the sound discretion of the trial judge and we cannot say that his ruling thereon was erroneous.

During the testimony of Mrs. Jacobson who, with her husband, had contracted to buy the house before construction was completed, she was asked concerning a letter written by her to Mr. Denny, originally a defendant herein and an officer of the corporation. Objection was entered regarding reference to the contents of the letter. The court stated that it might be referred to for the purpose of establishing notice to defendants of the condition of the house, but sustained the objection 'as to what appears to be their private controversy.'

Thereafter, counsel for plaintiffs read from the letter the following: 'Then began the series of sickening thuds that left us poleaxed, culminating in Mr. Hotaling reneging on his word that we would receive out money back, etc.'

Appellants specifically objected to that statement in the letter after it was read to the jury, saying that it was highly prejudicial. At the same time they asked for a mistrial, to all of which the court answered: 'Overruled.' Appellants now complain that the court admitted said evidence over their objection. The record does not bear out their contention as to the court having ruled the evidence admissible. The court's repeated rulings (as appellants on page 29 of their brief admit) indicates that no part of the letter was ruled admissible except to prove notice, make it clear and that only that part of the letter dealing with notice to defendants of the condition of the house prior to plaintiffs purchase of it, was ruled admissible. It is, therefore, apparent that the court intended only to overrule the motion for mistrial. Defendants...