Sealy v. McElroy, 6 Div. 500

CourtSupreme Court of Alabama
Citation288 Ala. 93,257 So.2d 340
Docket Number6 Div. 500
PartiesCharlie O. SEALY et al. v. James W. McELROY et al.
Decision Date20 January 1972

Page 340

257 So.2d 340
288 Ala. 93
Charlie O. SEALY et al.
James W. McELROY et al.
6 Div. 500.
Supreme Court of Alabama.
Jan. 20, 1972.

[288 Ala. 95]

Page 342

Hubbard & Waldrop, and Wade H. Morton, Jr., Tuscaloosa, for appellants.

[288 Ala. 96] Henley & Northington, Northport, for appellees.

LAWSON, Justice.

This is an appeal by the defendants below from a judgment of the Circuit Court of Tuscaloosa County entered on a jury verdict returned in favor of the plaintiffs below in the sum of $3,500 and from a judgment of the court overruling the defendants' separate motions for a new trial.

James W. McElroy and wife, Lena, instituted this litigation in the Circuit Court of Tuscaloosa County against Charlie O. Sealy, Lang Ray and Reeves, Inc., a corporation,[288 Ala. 97] to recover damages which they allege they suffered in connection with their purchase of a house and lot located at 15 Cottonwood Park in Tuscaloosa County.

We will refer to the property involved in the litigation as the house and to the plaintiff as the McElroys.

The house was owned by the defendant Reeves, Inc. Charlie O. Sealy was the owner of ninety-nine percent of the stock of Reeves, Inc., and was its executive officer. He was engaged in the real estate business in Tuscaloosa under the name of Sealy Realty Company, which held a board listing on the house at the time of sale to the McElroys. The defendant Lang Ray was employed by Sealy Realty Company as a real estate salesman.

The house, along with other houses in Cottonwood Park, was advertised for sale by Sealty Realty Company in a Tuscaloosa newspaper. As a result of the advertisement the McElroys were shown the house by Ray. After some negotiations, the McElroys made an offer which was incorporated into a so-called contract by Ray. The McElroys signed the instrument and put up $50 as earnest money. Ray carried the contract to Charlie O. Sealy, who later approved its contents but it was never

Page 343

signed by Sealy or by anyone who represented him or Sealy Realty Company.

Ray represented to the McElroys that the house was a good house, made of good material and was of good workmanship. Ray told the McElroys the name of the man who built the house and told them that he was a good builder who built good homes. Ray told the McElroys that Mr. Sealy 'would stand behind' and fix any 'substantial' defect which 'was within reason' and was discovered in the house within one year after the date of its sale. According to the McElroys, or one of them, the representation by Ray was that Mr. Sealy would fix any defect found in the house during the first year, substantial or otherwise. The representations which Ray admitted he made to the McElroys concerning the house were made with the approval and authorization of Charlie O. Sealy.

Ray told the McElroys that Sealy Realty Company owned the house and that he was selling it for that company. The McElroys did not know that Reeves, Inc., had any interest in the house until the execution of the deed. Apparently Ray did not know that the title to the house was in Reeves, Inc., prior to that time.

The deed executed by Reeves, Inc., conveying the house to the McElroys contains the usual warranty as to title but contains no warranty as to the quality of the house or any covenant to repair defects therein.

Within a short time after they took possession the McElroys complained of certain defects in the house. Several other complaints were made later. Sealy Realty Company undertook to satisfy the McElroys by correcting certain of the defects about which complaints were made, but to no avail.

A few weeks before the expiration of the one-year period, the McElroys wrote a letter to Charlie O. Sealy wherein they enumerated certain claimed defects in the house which they asserted needed repairing. The letter concluded thusly: 'We hereby give you ten days to fix these conditions, if you don't we shall turn this matter over to our attorney.'

After receipt of the letter Sealy, accompanied by one of his employees and by the contractor who built the house, went to the house and made an inspection of it in the presence of the McElroys or one of them. When the inspection was concluded Sealy agreed to have certain work done on the house but refused to put down a new hardwood floor in one or more rooms. The McElroys agreed to let Sealy make the repairs which he offered to make, but on the night of the visit and inspection the McElroys changed their minds and advised Sealy of their decision. Within a few days this suit was filed.

[288 Ala. 98] The original complaint contained but one count, which alleged a breach of warranty. The defendants' joint demurrer to the original complaint was overruled. The plaintiffs then amended their complaint by changing the name of the defendant Charlie O. Sealy 'to read Charlie O. Sealy, doing business as Sealy Realty Company,' and by adding Counts 2, 3 and 4. Some minor changes, all immaterial to this appeal, were made to Count 1 by the aforementioned amendment. The defendants filed a joint demurrer to the complaint as amended, which demurrer was overruled. Plaintiffs amended their complaint again by adding Counts 5 through 9. According to the judgment entry, a demurrer interposed by the defendants to the complaint as so amended was overruled.

At the conclusion of the evidence, the trial judge at the request of each of the defendants gave general affirmative charges in writing with and without hypothesis as to Counts 1, 2, 3 and 4.

In briefs filed on behalf of appellants, the defendants below, it is said that Counts 7 and 8 were abandoned. Appellees in their brief say that they 'do not find where Count 7 and Count 8 of the complaint were abandoned.' In its charge to

Page 344

the jury the trial court stated: 'So you have counts five, six and nine that are submitted to you for your consideration.' We cannot determine from the record why the trial court ignored Counts 7 and 8, but no exception was taken by the plaintiffs below to the statement of the trial court just quoted, nor do we find any other indication in the record that plaintiffs sought to have the case go to the jury on Counts 7 and 8 of the complaint as amended.

We conclude that the appellants are correct in asserting that the case went to the jury on behalf of the plaintiffs on only Counts 5, 6 and 9. As we read the judgment entry, the case went to the jury on behalf of the defendants on the plea of the general issue in short by consent with leave, etc., in the usual form.

We have said that a case will not be reviewed here on a theory different from that on which the trial was had.--Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89; Union Springs Telephone Co., Inc. v. Green, 285 Ala. 114, 229 So.2d 503. That principle of appellate review will be applied as we come to a consideration of assignments of error referred to in appellants' brief.

This case was not defended in the trial court on the theory that the representations made by Ray to the McElroys were not in writing and therefore were in violation of the statute of frauds, nor was it tried on the theory that the verbal representations made by Ray to the McElroys, not being included in the deed, cannot be the basis of a cause of action. See Johnson v. Delony, 241 Ala. 16, 1 So.2d 11; Schock v. Underwood, 260 Ala. 294, 70 So.2d 264. Cf. Ridley v. Moyer, 230 Ala. 517, 161 So. 526. Consequently, nothing said in this opinion is to be understood as having any bearing on the right of the McElroys, the plaintiffs below, to recover if the case had been defended on the grounds last alluded to above.

We are not concerned here with any question of an implied warranty, so consideration need not be given to Cochran v. Keeton & Thompson, 287 Ala. 439, 252 So.2d 313, or to Carter v. West, 280 Ala. 603, 196 So.2d 718.

The appellants purport to argue only eight of the sixty-eight assignments of error which they have made. We will not write to the assignments of error which are not adequately argued in appellants' brief.--Supreme Court Rule 9; First Nat. Bank of Birmingham v. Brown, 287 Ala. 240, 251 So.2d 204; Valley Heating, Cooling & Electric Co. v. Alabama Gas Corp., 286 Ala. 79, 237 So.2d 470.

It appears from the address of the assignments of error that they are made 'separately and severally.' No objection [288 Ala. 99] to this form of assignments of error was made in this court. The assignments being several, the rule that denies effect to joint assignments unless good as to all appellants is not applicable.--Elmore v. Cunninghame, 208 Ala. 15, 93 So. 814.

The appellants have filed a joint brief which is in some respects excellent, but in other respects it confronts us with problems in the preparation of this opinion.

We will consider first the appellants' argument made in support of Assignment of Error 6, which is to the effect that the trial court erred in overruling defendants' demurrer to Count 5.

Count 5 of the amended complaint reads in part as follows:

'. . . The Plaintiffs claim of defendants the sum of SEVENTY FIVE HUNDRED AND NO/100 ($7,500.00) DOLLARS as damages, for the breach of a warranty in the sale of a house located in Cottonwood Park in Tuscaloosa County, Alabama, by the Defendants to the Plaintiffs on, to-wit: the 18th day of

Page 345

April, 1964, which the Defendants warranted or guaranteed as follows:

'. . . That the house was built out of good materials and built with good and workmanlike manner.

'. . . When in fact, the house was not built out of good materials and was not built in a good and workmanlike manner in this, to-wit:

'* * *'

The allegations quoted above are followed by averments spelling out sixteen different defects in materials and workmanship.

Assignment of Error No. 6 is sufficient to present for consideration those grounds of the demurrer insisted upon in brief of appellants as having been well taken.--Turner v. Blanton, 277 Ala. 536, 173...

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