Vendt v. Duenke
| Decision Date | 20 April 1948 |
| Docket Number | 27348,27355 |
| Citation | 210 S.W.2d 692 |
| Parties | VENDT et ux. v. DUENKE et al. (two cases) |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
William J. Becker, of Clayton, for plaintiffs-respondents-appellants.
John A Nolan and Walter Wehrle, both of Clayton, for defendants-appellants-respondents.
ANDERSON
This is an action for damages for fraud and deceit in the sale of a dwelling house. Plaintiffs William J. Vendt and Fern A Vendt, his wife, were the purchasers; defendant William H. Duenke was the vendor of the house in question; and defendant Elmer E. Vorhof was a salesman employed by defendant Duenke, and made the sale of the house in question. The trial below resulted in a verdict and judgment for plaintiffs. Thereafter, each defendant filed a motion to set aside the verdict and judgment and to enter judgment for defendants or to grant said defendants a new trial. The court sustained these motions, and entered an order granting said defendants a new trial, specifying in said order that the court erred in giving and reading to the jury instructions one and two requested by the plaintiffs. From said order plaintiffs appealed. Defendants also have appealed from said order, stating in their notice of appeal that they 'have appealed from the order and judgment entered in this cause on the 5th day of May, 1947, overruling the motion of these defendants for verdict and judgment to be set aside and judgment rendered in favor of defendants on grounds one, two and three of their motions.'
Ground One in each of defendants' motions was that the court erred in refusing the motion to dismiss filed by said defendants at the close of plaintiffs' case, and grounds two and three were that the court erred in overruling the defendants' objection to the introduction of any evidence, on the ground that plaintiffs' petition did not state sufficient facts to constitute a cause of action.
The petition alleged that plaintiffs purchased from defendants a five-room bungalow; that said bungalow was sold prior to its construction, pursuant to a contract entered into between the parties on January 19, 1939; that on May 25, 1939, plaintiffs paid the full purchase price for said house in the sum of $ 5,255, and thereafter received a warranty deed for same.
The petition further alleged that defendants platted and developed the subdivision in which said house was built; that at the beginning of said development, defendants erected a display house, which was shown to and inspected by plaintiffs as the type of house which would be constructed for plaintiffs; that defendants represented that plaintiffs' bungalow would be constructed under Federal Housing Administration inspection exactly the same in structural details as the display house; that said display house had been constructed for more than six months, and appeared to be sound as well as attractive; that plaintiffs had confidence in defendants and believed that they would be protected by periodical inspections during construction of said house by trained and experienced inspectors of said Federal Housing Administration.
The petition further alleged that plaintiffs were cheated and defrauded by the defendants, who cheapened the construction of said bungalow, and concealed its faulty construction; that defendants constructed the foundation of said bungalow on filledin ground, or unpacked, soft earth, without footings of any kind; that the walls were of brick veneer, backed by hollow clay tile, laid-in layers, without headers or ties of any kind to bind the outer and inner layers of masonry walls together; that the ceiling joists were laid the long way instead of the short way without compensating therefor by increasing the size of the joists; that the roof covering was of thin, light weight material.
The petition further alleged that neither of plaintiffs had experience or training in building construction or knowledge of practical and proper building practices; that the said faulty installations were made in such a manner and at such times that it was impossible for plaintiffs to discover same; that said faulty installations were covered up and concealed by the defendants in such a crafty and deceitful manner as to escape detection after installation; that the official of the Federal Housing Administration did not inspect said bungalow until after said faulty construction had been installed and concealed and plaintiffs had been given possession thereof.
The petition further alleged that as a result of said fraud of defendants, said bungalow had sunk and was continuing to sink into the ground; that the walls and foundations bulged and cracked open; that the partitions and ceilings bent, warped, and cracked; that the plaster cracked and fell off; that the roof bent; twisted, warped and cracked open, causing leaks therein, which caused the destruction of the insulation of the house; that said bungalow does not provide protection from the elements; that plaintiffs have been forced to spend abnormal sums of money for coal and heat; that they are forced to live in constant fear of the collapse of the roof and walls, and that said bungalow is unsafe to live in.
The petitioin further alleged that said defects did not appear or become apparent and said fraud was not discovered until March, 1942.
The petition further alleged that as a result of said fraud and deceit, said property is and will be wholly valueless unless said faulty construction is remedied by reconstruction; that plaintiffs will be required to rebuild the entire foundation of said house, remove and rebuild the east end of the south wall, replace insulation, install supporting beams under the ceiling joists, and replaster the entire house.
The petition further alleged that when and if said repairs are made, said bungalow will still be a patched up job, depreciated in value to the extent of at least 20% of its normal or proper value; and that the reasonable cost of all of said repairs, plus depreciation after repair, was $ 3,500.
The petition prayed for $ 3,500 actual and $ 10,000 punitive damages.
The separate ansewr of defendant Vorhof was a general denial.
The answer of defendant Duenke admits the sale of the premises in question to plaintiffs; admits that Duenke developed Wilbur Terrace and constructed a display house thereon, known as 9016 Philo Avenue; that prospective purchasers, including the plaintiffs, were shown said display house; and that except so far as purchasers desired changes therefrom, bungalows were to be such display house; that tails similar to such display house; that each of said bungalows, where Federal Housing Administration loans were to be placed thereon, were to be constructed under the regulations and subject to the inspection of the Federal Housing Administration. The answer then contains a general denial, and a plea that plaintiffs' cause of action, if any, is barred by the statute of limitations, Sec. 1016, R.S.Mo. 1939, Mo.R.S.A. § 1016.
The defendant William H. Duenke was engaged in the business of building and selling dwelling houses in Wilbur Terrace, a real estate subdivision in St. Louis County. He did business as an individual under the name Wilbur Construction Company. Defendant Elmer E. Vorhof was a salesman, employed by defendant Duenke. He had no interest in the business, and did not share in the profits. He received a commission from Duenke for effecting a sale of the house in question. Plaintiffs William J. Vendt and Fern A. Vendt were husband and wife, and the purchasers of one of the houses in said subdivision.
The evidence shows that in the early part of January, 1939, plaintiffs first visited the new subdivision known as Wilbur Terrace. They there met defendant Vorhof at a display house which defendant Duenke had built, and which was open for inspection. This display house was a brick bungalow, with 5 rooms and a bath. It had no upstairs. Mr. Vendt at the time asked Vorhof what the price of such a home would be, and, according to the testimony of Vendt, Vorhof informed him that the price for the house was $ 4,950, and that if they wanted anything different than what the plans called for, that it would cost extra.
After inspecting the house, Mr. Vendt asked Vorhof what it would cost to put in an upstairs, and Vorhof informed him that it would be $ 100 extra. Vorhof explained that such a change would require heavier joists, a window in the attic, a stairway, and an electric light. Vorhof testified that he thought he told plaintiff the cost would be around $ 5,250 plus any extras that were wanted.
On January 16, 1939, plaintiffs again visited the subdivision, inspected the display house, and looked at several lots which were for sale. Finally they chose lot 8, in block 2, as desirable. They asked how much of a loan they could get for the construction of a house on this lot, and Vorhof explained to them all about the F.H.A., and told them how much the loan would be, the term, and the interest rate. On that date plaintiff made a payment to Vorhof of $ 5 as earnest money on the purchase of the property in question, and on the 17th a further deposit of $ 195.
Vorhof told plaintiffs at the time that their house would be like the display house, the model home they were looking at, and that if they wanted a second floor stairway, there would have to be 2 x 8 joists used instead of 2 x 6's. Vorhof stated he did not say anything to plaintiffs about the materials that would go into the proposed construction or about the character of the workmanship.
The earnest money contract recited: Note: Building to be similar to 9016 Philo. All improvements, such as streets, curbs sidewalks, water, sewers, electric and gas to be put in and paid...
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