Reynolds v. Wilson
| Decision Date | 09 February 1970 |
| Docket Number | No. 2,No. 44865,44865,2 |
| Citation | 173 S.E.2d 256,121 Ga.App. 153 |
| Parties | William M. REYNOLDS et al. v. Paul D. WILSON |
| Court | Georgia Court of Appeals |
While the law implies no warranties as to the quality or condition of an existing new house in favor of a vendee by the vendor-builder, yet the petition here in Count 1 seeks damages for existing latent defects not disclosed to the petitioners but apparent to the defendant who thereby is allegedly guilty of fraud, and states a claim for the relief sought.
(a) Count 2 of the petition seeking relief strictly on an alleged implied warranty in which the contract of sale has merged in a deed fails to state a claim for the relief sought.
(b) A suit based upon damages in the performance of a contract which remains after the purchase of the property by deed by reason of the breach of the special stipulation states a claim for relief. The court erred in dismissing Counts 1 and 2 as shown above.
This is an action for damages in three counts, arising from the sale by the builder of a defective dwelling. The sale of the dwelling, of necessity, arose out of the sale of realty on which the dwelling was constructed. This appeal is from the trial court's dismissal of all three counts of plaintiffs' petition as finally amended. Initially there was a motion to dismiss plaintiffs' case on the pleadings, the plaintiffs in the lower court being the appellants here. Two depositions were presented and not excluded by the court, yet it is not clear that all parties were given a reasonable opportunity to present all materials pertinent to a motion for summary judgment. See Code Ann. §§ 81A-112 and 81A-156 ().
Count 1 of the petition as finally amended alleges fraud on the part of the defendant in the sale of the house in that he did not act in good faith but affirmatively attempted to defraud the plaintiffs in utmost bad faith by concealing latent defects known to him and by representing to the plaintiffs that the house was suitable for their occupancy when in fact it was not, and he failed to obtain a final inspection by the DeKalb County, building authorities as required by law. The plaintiffs allege certain stated defects were latent at the time of the purchase, the same being: (1) The defendant failed to grade the lot in violation of the DeKalb County Minimum Construction Standards; (2) Knew that waterproofing was not applied to the outside walls of said dwelling which when coupled with the improper grading caused additional seeping in the basement of the dwelling, causing extensive damage, necessitating repairs thereto; (3) Inadequately supported certain cement slabs also in violation of the KeKalb County Minimum Construction Standards, resulting in the cracking of the concrete due to alternate wetting and drying of the clay below said slabs; (4) Used materials in the construction of the dwelling which did not comply with the DeKalb County Minimum Construction Standards, thereby requiring replacement of certain portions of the roof due to the defects therein; and did not act in good faith but affirmatively attempted to defraud the plaintiffs herein by utmost bad faith in concealing the latent defects known to him at the time of the sale of the dwelling but unknown to the plaintiffs, and representing to the plaintiffs that the house was suitable for their occupancy when in fact it was not, and in failing to obtain a final inspection by the DeKalb County Building Authorities as required by law. They sought compensatory and exemplary damages in stated amounts.
Count 2 of the petition alleges a breach of implied warranty by reason of the fact that the builder possessed certain skills which the plaintiffs did not have and that he impliedly warranted the building to be built in a workman-like manner in compliance with the DeKalb County Minimum Construction Standards and would be fit for the purpose for which it was intended; and they placed full reliance on him to sell them a structure fit for a dwelling; and as a result of the breach of a said implied warranty they were damaged in a stated sum.
Count 3 of the petition alleges certain damages in the construction of double doors installed in the basement in place of a single door as the result of a special stipulation in the contract of sale, alleging that the defendant failed to perform the contract in a workman-like manner, in that he failed to adequately support the brick veneer which remained above the double doors as required by the DeKalb County Minimum Construction Standards, otherwise known as DeKalb County Building Code, and as a result of the inadequate support, cracking has developed in the...
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