Thames & Co. v. Eicher

• Decision Date: 08 August 1979
• Docket Number: No. 51292,51292
• Citation: Thames & Co. v. Eicher, 373 So.2d 1033 (Miss. 1979)
• Parties: THAMES & COMPANY, and Mrs. L. T. Rogers, Sr. v. Donald E. EICHER, Jr. and Rosemary Eicher.
• Court: Mississippi Supreme Court

Page 1033

373 So.2d 1033

THAMES & COMPANY, and Mrs. L. T. Rogers, Sr. v. Donald E. EICHER, Jr. and Rosemary Eicher.

No. 51292.

Supreme Court of Mississippi.

Aug. 8, 1979.

Prewitt & Prewitt, John W. Prewitt, Vicksburg, Daniel, Coker, Horton, Bell & Dukes, Alan B. Cameron, Jackson, for appellants.

Ellis, Braddock & Bost, William M. Bost, Jr., Vicksburg, for appellees.

Before ROBERTSON, P. J., and BROOM and COFER, JJ.

BROOM, Justice, for the Court:

Implied warranty and damages for breach thereof with reference to a new house purchased by Donald E. Eicher, Jr. and his wife Rosemary Eicher is the chief feature of this case tried in the Circuit Court of Warren County. In that court, a $60,000 jury verdict was returned in favor of the Eichers and against the appellants, Thames & Company and Mrs. L. T. Rogers, Sr. The lower court entered a remittitur reducing the recovery to $50,000. We affirm as to liability but order a new trial as to damages unless the Eichers accept an additional remittitur of $12,000.

On June 25, 1973, Mrs. Rogers as president of Thames & Company executed a deed conveying to the Eichers the subject house for a total price of $38,500. Shortly thereafter, the house began to show signs of an improper foundation in that window frames and window panes bulged outward. Later on, less than two years after the purchase, the house almost came apart, as evidenced by cracks at various places. Soil tests by an expert revealed that sagging occurred to the house because of the inadequate and insufficient foundation for the house, which was constructed upon a fill. Evidence accepted by the jury was that Mrs. Rogers told the Eichers that the house was not on a filled lot but on a cut lot. Testimony accepted by the jury established that two rooms became uninhabitable because of the defects and it is obvious that the implied warranty against defects in a new house was breached.

The first argument made is the assertion of Mrs. Rogers that the lower court erred in looking past the corporation Thames & Company to hold her liable for what she contends are the acts of her corporate employer, Thames & Company. We recognize the decisional law of Mississippi that ordinarily an authorized agent for a disclosed principal cannot be held liable for the acts of the agent's corporate principal. Reliance is placed upon Oliver v. City Builders, Inc., 303 So.2d 466, 469, 470 (Miss.1974), which held that a builder-vendor was liable upon an implied warranty to his first purchaser or vendee for defects in the new house. Mrs. Rogers contends that she was not the builder-vendor of the house but a mere agent for Thames, the original builder-vendor of the house. However, according to the Eichers' testimony, they knew only of Mrs. Rogers (and not Thames) during all the negotiations until the occasion of closing out the house purchase. The facts show here that the corporate appellant, Thames, was no more than the alter ego of Mrs. Rogers. She held all of the stock in the company, and when deposed on February 21, 1978, was unable to recall who the directors and stockholders of the corporation were. She furnished construction funds for the corporation which appeared to be without substantial capital. The evidence established that the corporation held no regular meetings and there were no minutes pertaining to its operation. Testimony reveals that Mrs. Rogers treated the corporation almost as though it did not exist and upon the evidence, we cannot say that the court erred in looking past and beyond the corporate structure and allowing Mrs. Rogers to be held individually, along with Thames, liable for the defective house.

Another argument made contends for reversal based upon improper remarks made by counsel for the Eichers. While the remarks may have been improper, we do not consider them to be of sufficient severity to...