Stovall v. Rumble, 30423.
| Decision Date | 08 April 1944 |
| Docket Number | No. 30423.,30423. |
| Parties | STOVALL. v. RUMBLE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Count 1 of the petition sets out a cause of action, and the court did not err in overruling the general demurrer thereto.
2. The special demurrers to count 1 are without merit, and the court did not err in overruling them.
3. Until there has been in the trial court a judgment finally disposing of a case, this court can not consider an assignment of error to the striking, on demurrer, of a portion of the defendant's answer.
4. The demurrers to count 2 of the petition, having been expressly abandoned by the plaintiff in error in his brief, will not be considered.
Error from City Court of Decatur; Frank Guess, Judge.
Action by Darden Rumble against C. D. Stovall for damages arising out of the sale by defendant to plaintiff of residence property which allegedly was not in the condition represented. Special demurrers to the petition were overruled, plaintiff's demurrer to a portion of answer was sustained, and defendant brings error.
Affirmed.
Roy S. Drennan, of Atlanta, for plaintiff in error.
Augustine Sams, of Atlanta, for defendant in error.
Darden Rumble sued C. D. Stovall for damages. The petition was brought in 2 counts. Count 1 alleged in substance: That, on or about July 17, 1943, the plaintiff, acting through his wife, agreed to purchase from the defendant certain real estate and improvements thereon consisting of a 6-room brick-veneer house; that on July 29, 1943, under the previous agree-ment of July 17, made with the defendant through his real estate agent, the defendant executed a deed conveying the property and improvements to the plaintiff; that prior to the sale and in order to induce plaintiff to purchase the property, the defendant represented that the property was in good physical condition, meaning the physical condition of the house and repairs; that the representations set forth were made with the intention of conveying information to the plaintiff as to the physical condition and soundness of the premises; that in these representations the defendant said the house was in perfect condition, that the floors were good and nothing was wrong. In count 1 it was further alleged that the ground floor of the house was only slightly elevated above the surface of the ground, so that it was impossible for the plaintiff to go under the house and inspect the condition of the sills, joists, pillars, sleepers and other wooden material going into the structure; that the plaintiff in the exercise of ordinary diligence could not inspect those portions of the house above referred to because of the nearness of the floor of the house to the ground; that later, the defects and conditions complained of were found to exist under the house, and were concealed by the house itself; that at the sale they should, by the exercise of ordinary prudence, have been known to the seller and revealed by him to the plaintiff; that after moving his furniture into the house, the plaintiff discovered, by reason of the weight of the furniture and by the walking of individuals over the floor, that the floor did not seem to be rigid; that it was necessary for one accustomed to building or working in close places to crawl under the house beneath the flooring, sleepers, sills, and other wooden parts of the house to discover their condition; that the sills of the house were found to have been placed below the point where the sills would normally be found, as indicated by the outside brick construction, and the sills were so near the ground that in places they had been cut in the installment of venilators; that in places the sills touched the ground and in other places were within 2 inches of the ground; that since the execution of the deed, the plaintiff has learned that the house, at the time the representations and sale were made by the defendant, was infested with termites and dry rot, which had eaten into the joists, sills, sleepers, flooring, and pillars, destroying their usefulness under certain portions of the house; that approximately 95 feet of the sills were so affected; that it would cost the sum of $595 to remove the debris between the ground and the floor of the house, remove the dirt therefrom so that there would be 18 inches between the ground and the floor structure, replace the damaged foundation, install a ventilator, and treat the dirt area beneath the house and the infested parts of the house with chemicals to destroy and prevent termites; that the plaintiff had lost the use of the northwest bed room, of the value of $10 a month, from the date of the purchase, July 29, 1943, because of the weak condition of the floors as above set out; that with reasonable diligence the plaintiff could not have discovered the above conditions; that the representations made by the defendant deceived the plaintiff and caused him to believe the condition of the house to be good throughout; and that the plaintiff was thus induced to purchase the premises and was injured and damaged as set forth above. Judgment was sought in the sum of $1615. Count 2 of the petition alleged in substance that, under the written contract between the parties, the taxes were to be prorated as of August 7, 1943; and that under this agreement the defendant was indebted to the plaintiff in the sum of $38.13, and judgment was sought in this amount.
The defendant demurred specially to count 1 of the petition upon the ground that it did not set out a cause of action, because the petition alleged that the defects were not patent, but were latent and impossible to ascertain; because there was no allegation to make the defendant, by the exercise of ordinary care, chargeable with notice of such defects; because the allegation that the defendant in the exercise of ordinary care should have known of the defects, was a conclusion of the pleader without any facts alleged to support same; because it was not alleged that the defendant had actual knowledge of the defects which were latent; because the action was based in tort for fraudulent representations and the representations were not specifically and definitely set forth; because the representations alleged to have been made by the defendant were of such a character as to require the plaintiff, in the exercise of ordinary care, to have ascertained the true conditions existing at the house, and it was not alleged that the plaintiff was preventedfrom ascertaining the conditions which existed at the house; because no copy of the alleged contract of sale or the deed given in pursuance thereof was set out. There were also several special demurrers which will be dealt with later. The demurrers to count 2 of the petition were expressly abandoned by the plaintiff in error in his brief.
The defendant filed an answer, admitting that, on or about July 17, 1943, the plaintiff, acting through his wife, agreed to purchase the real estate and improvements thereon from him, and that on July 29, 1943, pursuant to said agreement, he executed a deed conveying the premises to the plaintiff; and he denied the other allegations of the petition. For further plea and answer, the defendant set up that he purchased the premises approximately seven months before the sale to the plaintiff, and that if the defects alleged by the plaintiff existed, they were unknown to defendant, and were not patent but were latent defects, of which he had no knowledge and which he had not and could not have discovered by the exercise of ordinary care and diligence; that the plaintiff...
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