Sullivan v. Ulrich

• Decision Date: 07 December 1949
• Docket Number: J,No. 34,34
• Citation: 40 N.W.2d 126,326 Mich. 218
• Parties: SULLIVAN et al. v. ULRICH. une term.
• Court: Michigan Supreme Court

Page 126

40 N.W.2d 126

326 Mich. 218

SULLIVAN et al. v. ULRICH.

No. 34, June term.

Supreme Court of Michigan.

Dec. 7, 1949.

Smith & Smith, Grand Rapids, for plaintiffs and appellants.

Bidwell, Schmidt & Martin, Grand Rapids, for defendant and appellee.

Before the Entire Bench.

BOYLES, Justice.

Plaintiffs sued the defendant in the circuit court for Kent county in an action of trespass on the case for damages, claiming that the defendant had defrauded plaintiffs in a transaction for the sale and purchase of a house. The gist of plaintiffs' claim is that the defendant fraudulently concealed the fact that the house was infested with termites, and misrepresented the facts in that regard. The case was tried by the court without a jury, resulting in a judgment of no cause for action, from which the plaintiffs appeal.

Defendant first listed her home for sale in July, 1946. The house had been closed for the summer and when the defendant returned in September, 1946, she discovered that considerable damage had been caused by rats. She immediately called one J. G. Vinkemulder, having learned that he was engaged in the 'extermination business.' The testimony shows that at that time, on September 6, 1946, Vinkemulder discovered that the house was infested with termites and so informed the defendant.

Later, in January of 1947, defendant listed her house for sale with one John B. McMullen, a real estate agent in Grand Rapids, who acted as the defendant's agent throughout these dealings between plaintiffs and the defendant. After some intervening time due to price negotiations, the house was finally exchanged by the defendant with the plaintiffs for a place they owned in Grand Rapids and $10,000 cash. The deal was finally consummated in November, 1947. About 6 months later the plaintiffs discovered the presence of termites in the house. Termites 'swarmed in the sunroom, coming out of the hole where the crank goes into the window. * * * there were literally thousands of termites on the floor and all over the sunroom.' The instant suit for damages followed in due course of time.

Plaintiffs claim that the defendant knew that the house was infested with and had been damaged by termites, that she failed to disclose this fact to plaintiffs, and falsely represented to plaintiffs that the house was not and had not been infested with or damaged by termites. The defendant claims that she neither knew of the termites nor made any representation concerning them. In that connection the defendant is responsible for any representations made by McMullen, the real estate agent who acted as her agent in making the deal. Chanler v. Venetian Properties Corporation, 254 Mich. 468, 236 N.W. 838.

In view of the dispute between the parties as to whether the defendant had knowledge of the presence of termites, and whether any misrepresentation as to the presence of termites in the house had been made to the plaintiffs by the defendant or her agent, it is necessary to refer to the testimony and evaluate the same.

One Vern Eicholtz, who was working for Vinkemulder, the termite exterminator, went to the house on September 6, 1946, at the defendant's call, and inspected it for rats, in the presence of the defendant. He found substantial evidence of a rat condition and advised the defendant how to go about exterminating the rats. In regard to evidence of the presence of termites, he testified as follows:

'At that time I found the termite condition there and informed Mr. Vinkemulder, whom I was working with. * * *

'I found evidence of termites more or less around the water meter at the bottom of the stairway as you come down and more or less in a little closet that was underneath the stairway in which part of the floor was gone. I don't believe I pointed those thinge out to her. I went back, as I was working for Mr. Vinkemulder, and told him and we went back together. That was subsequent to my first visit. I got Mr. Vinkemulder to come back with me because he and I worked on termites together for 4 years. I believe something was said between me and Mrs. Ulrich about my bringing Mr. Vinkemulder because I called her attention to the floor condition.

'I came back with Mr. Vinkemulder about 2 days after my first visit and Mrs. Ulrich was there at the time we came back. Mr. Vinkemulder and I went through and pointed out the spots and showed the evidence of termites. Mrs. Ulrich was with us while we were doing this. We indicated to her that there were termites in this recreation room where the condition was the worst. This was the same place where I pointed them out before.

'According to my best recollection Mr. Vinkemulder told Mrs. Ulrich there were termites. At the time he told her he indicated portions of the house. I don't recall what, if anything, she said after he told her there were termites.

'At the time Mr. Vinkemulder and I were there Mr. Vinkemulder removed some wood from a portion of the basement. That occurred in my presence and in Mrs. Ulrich's presence. The wood showed termite condition. It showed where termites had worked. They work by destroying the wood, but they do not destroy the outside surface of the wood.

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'Q. And do you know positively that in the course of the conversation with the lady, whoever it might have been, you said in so many words, 'You have termites in the house'? A. Yes, I know that was said.

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'Q. If you examined the house in September of 1946 and termites were discovered in the house in June, 1948, isn't it conceivably possible that those termites got in at any interval in that 2-year period or 22-months period? A. They were there at the first time we looked it over.'

Mr. Vinkemulder, the termite exterminator, testified as follows:

'I am in the termite control business and have been for approximately 15 years. * * * I have inspected the property at 859 Chippewa, S. E., on more than one occasion. The first occasion was September 6, 1946 when I was called in by Mr. Eicholtz. I went to the property with him. I went there because termites were suspected in the property and he told me that is why he wanted me to come there. After we got there we inspected the basement as I usually do and it was a very short time before we located termite activity. By that I mean evidence of termites.

'I found evidence of termites around the water meter and near the stairway. Mrs. Ulrich was there at the time in the basement with me. I told her there was evidence of termites there in the floor and that something should be done about it. She didn't believe that there were termite activities there but I showed her in the floor where there were termites and asked her if she would like to have me give her a figure to take care of it. She said at that time she didn't want me to, but if she did she would call me later.'

Dr. Sullivan, one of the plaintiffs, testified:

'I would say that the first time the subject of termites came up in any conversation between me and Mr. McMullen (defendant's agent) about 859 Chippewa was in August after we got back from our vacation. That was August of 1947. The first conversation took place in my office. * * *

'Q. What, if anything, was said then about termites?

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'A. I asked him at that time if there were termites on the property.

'Q. And what did he say? A. At that time he said as far as he knew he had never seen any evidence of them.

'At that time I asked him if he would go and ask the owner if she knew anything, whether there were termites and he said he would ask her. After that, probably in September or October I again discussed the matter with Mr. McMullen.

'Q. And what was said then? A. He told me--I asked him if she said whether there were termites or not termites and he simply made the statement there never had been any visible signa of termites, which I took to be an answer from her.

'Subsequently, I was at the property when both Mrs. Ulrich and Mr. McMullen were present. At that time Mr. McMullen took me through the house and we went down in the recreation room. Mrs. Ulrich was hanging something up or taking it off the clothesline. When I came into the basement down the stairs there was a repair in front of the water meter, and a repair on the false base that the drain comes through and another over by the wall. I asked what caused that damage and why it was replaced. I was told that that was damage from the water meter. Mr. McMullen made the statement. Mrs. Ulrich was there in the room at the time.'

The defendant in her own behalf testified as follows:

'Q. Now tell us, did you and Mr. Vinkemulder have any conversation at that time relative to the existence of termites in the house? A. I can't recall what we did. We talked about rats and extermination and about termites I don't remember anything about Mr. Vinkemulder talking to me about it.

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'Q. Did Mr. Vinkemulder ask you if you had had your house termite-proofed or say anything about that? A. He mentioned, as I remember now, I am rather vague about it because I was interested only in getting the rats taken care of, he memtioned something about termites--had I ever had a termite examination? I said 'No, I never had any' * * *.

'Q. Did you ever talk with John B. McMullen about the existence or known existence of termites in your house? A. I never talked to John B. McMullen about it. I never knew I had any.

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'Q. Mrs. Ulrich, Mr. Vinkemulder asked you whether or not you wanted to have your house completely inspected to determine whether or not you had any termite damage. Is that correct? A. He mentioned something about termites, Mr. Smith, but exactly what I wouldn't be able to say. I asked him to come there for the rat damage but not for termites.

'Q. Is it possible for you to say what he did say to you about the termites? A. Not exactly except he just mentioned----

'Any conversation that Mr. Vinkemulder had with me on termites, I cannot recall...