Smith v. Bifano
| Decision Date | 02 December 1959 |
| Docket Number | No. 3684,3684 |
| Citation | 330 S.W.2d 473 |
| Parties | Malcolm R. SMITH, Appellant, v. A. T. BIFANO, Appellee. |
| Court | Texas Court of Appeals |
Carter, Gallagher, Jones & Magee, Dallas, for appellant.
Henry Klepak and Norman A. Zable, Dallas, for appellee.
Plaintiff Smith brought this suit against defendant Bifano under Article 4004, Vernon's Ann.Civ.St., to recover damages because of misrepresentations made by defendant to plaintiff concerning the foundation of a house which was purchased by plaintiff from defendant. By agreement of the parties the Trial Court submitted the case to the jury on a general charge. The jury found in favor of plaintiff and fixed his damages at $3,000. Plaintiff and defendant both filed motions for judgment. The Trial Court granted defendant's motion for judgment non obstante veredicto. Plaintiff appeals, contending that the Trial Court erred in granting defendant judgment non obstante veredicto; that there is evidence to support the findings of the jury; and that this court should reverse the judgment of the Trial Court and render judgment for the plaintiff for $3,000.
Plaintiff alleged that he entered into a written contract with defendant in July 1955 to purchase a certain house from him; that prior to closing the transaction plaintiff learned that the house was constructed on a lot which had required considerable 'fill dirt' to bring the level of the lot up to the desired height; that he questioned defendant as to the adequacy and stability of the foundation of the house; that defendant represented to him he had constructed the foundation of the house in such a manner as to compensate for the fill dirt which had been placed on the lot; that such representation was false; made for the purpose of inducing plaintiff to purchase the house; that plaintiff relied on such false representation to his detriment; that but for such representation he would not have purchased the house; that thereafter in April 1957 the bricks cracked on the house; the bricks pulled away from the eaves and sheetrock; that defendant, though notified of same, failed and refused to make necessary corrections; that plaintiff's damage is $7,500. Defendant filed denial to plaintiff's petition.
Trial was to a jury; and submission was made on general charge by agreement, pertinent portions of which follow:
'You are instructed that if you find from a preponderance of the evidence that before the sale of the house and lot in question was consummated the defendant Bifano made representations to the plaintiff Smith about the nature and extent of the foundation to such house and the character of the foundation as it pertained to the soil structure upon which the house was built; and if you find that such representations, if any, made by defendant Bifano were false at the time made, and if you should find that plaintiff Smith, in purchasing the house, relied upon such false representations, if any, of defendant Bifano, and but for such false representations, if any, would not have completed the purchase of such house, and if you further find that plaintiff has sustained damages as a result of false representations, if any, of defendant, then you will find a verdict in dollars and cents for the plaintiff.
'However, if you find that defendant Bifano did not make any false representations to plaintiff Smith regarding the character and nature of the foundation of the house or the nature of the soil structure upon which the house was built, or if you should find the plaintiff Smith did not believe and rely upon false representations, if any, of Bifano, or if you should find that plaintiff did not sustain any damages as a result of false representations, if any, of defendant, then you will return a verdict in favor of the defendant.'
The jury returned its verdict: 'We, the jury, find in favor of the plaintiff Smith, and fix his damages at $3000.00'.
Our Supreme Court in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199, states the principles of law involved:
'Also, to sustain the action of the trial court in granting judgment non obstante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon. (Citing authorities.)
See also 3B Tex.Jur., Secs. 938, 939 and 940, and cases there collated; Olds v. Traylor, Tex.Civ.App., 180 S.W.2d 511, pts. 8 and 9, W/E Ref.
A review of the record before us discloses that defendant when asked about the 'fill' of the lot and the...
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