Vernali v. Centrella

• Decision Date: 26 May 1970
• Docket Number: No. 20989,20989
• Citation: 266 A.2d 200,28 Conn.Supp. 476
• Court: Connecticut Superior Court
• Parties: Jean C. VERNALI et al. v. Carmine J. CENTRELLA.

Page 200

266 A.2d 200

28 Conn.Supp. 476

Jean C. VERNALI et al. v. Carmine J. CENTRELLA.

No. 20989.

Superior Court of Connecticut, Litchfield County.

May 26, 1970.

Januszewski, McQuillan & DeNigris, New Britain, for plaintiffs.

Upson, Secor, Greene & Cassidy, Waterbury, for defendant.

MEYERS, Judge.

The complaint sets out that in March, 1967, the parties to this action entered into a contract in which it was agreed that for a sum certain, which the plaintiffs agreed to and did pay, the defendant builder-vendor would construct, in accordance with plans and specifications, and turn over to the plaintiffs, a house on Trescott Hill Road in North Canaan. The defendant, it is alleged, directed and completed the construction, furnishing all materials and labor. Certain representations were made by him and relied on by the plaintiffs, according to their allegations, including the representation that he was capable and qualified to undertake and complete the construction. It is further alleged that the fireplace built in the house was used on November 6, 1967, and that night what might be termed an unfriendly fire occurred in the wall immediately to the rear of the fireplace and spread to and destroyed or damaged other walls, ceilings and floors of the house, causing extensive damage thereto. The plaintiffs seek money damages for the loss occasioned by the fire, which is claimed by them to have resulted from several described failures, improprieties and insufficiencies in the construction of the house by the defendant.

The instant demurrer attacks the sufficiency of the second count of the complaint to state a cause of action. That count sounds in breach of implied warranty and is to the effect that the construction by the defendant was to have been, but failed to be, in good workmanlike manner and suitable for the purpose for which it was intended, namely, a place of residence for the plaintiffs. The defendant's claimed ground of demurrer is that 'the law does not impose an implied warranty on the construction of a building as alleged in the complaint.' With this position this court is not in accord.

Only for the reason that caveat emptor and the Uniform Commercial Code have been referred to in the briefs or in oral argument on this demurrer are comments as to both included.

The sustaining of the defendant's demurrer would be tantamount to the effective operation of the rule of caveat emptor. Indeed, it would be a harsh result were the purchaser of a new home rendered powerless by the summary denial to him of the right to seek damages where, for instance, defects occurred in the building of his home which were not visible to the eye before he took possession. Included in such defects and as examples might be a roof not properly installed, or one affording poor and insufficient protection from the elements, or a foundation which gave way to the weight of the structure thereon shortly after the owner took possession, or the use of insufficient supporting timbers for an upper floor, so that a visible sagging thereof beyond normal tolerances resulted. The construction of a chimney with combustible material as a lining or with improper openings also might be an example of a defect not readily visible before the stack was put to use. As a matter of fact, kindred latent defects too numerous to enumerate might show themselves soon after delivery of a new structure. Fairness and reason dictate that there should be access to judicial determination, if need be, as to the correction of such defects, or adjustment because of them, without vulnerability to defeat by the rule of caveat emptor. It has been held that one who constructs a building impliedly warrants that the building shall be erected in a workmanlike manner and in accordance with good usage and the accepted practices in the community in which the construction and work are done. Mann v. Clowser, 190 Va. 887, 901, 59 S.E.2d 78 (1950).

The rule of caveat emptor had its origin during the sixteenth century in the then chancy conditions of English trade operations as they dealt with chattels and personalty. Subsequently, the rule became an integral part of our own business dealings. Hamilton, 'The Ancient Maxim Caveat Emptor,' 40 Yale L.J. 1133, 1164, 1178-1180 (1931). Basically, such a doctrine applies to a sale and transfer when the purchaser has had the opportunity of investigating and inspecting what he is dealing for and buying, and when his observations would disclose defects which are material. Sperry Rand Corporation v. Industrial Supply Corporation, 337 F.2d 363, 370 (5th Cir.1964); Lindberg v. Coutches, 167 Cal.App.2d Supp. 828, 833, 334 P.2d 701 (1959).

In the acceptance by the purchaser-owner of defective performance under a contract for construction of a house, there arises no legal presumption that such acceptance discharges any right of damages for those defects unless a length of time unreasonable under all of the circumstances elapses without complaint. 5 Williston, Contracts (3d ed.) § 724. The question is one of fact. It is generally held that the mere fact that a purchaser-owner of a building has taken possession thereof after its erection does not in itself constitute an acceptance of the workmanship of the contractor-builder in each respect. Mitchell v. Carlson, 132 Mont. 1, 313 P.2d 717 (1957); Garbis v. Apatoff, 192 Md. 12, 19, 63 A.2d 307 (1949); Wood v. Blanchard, 212 Mass. 53, 56, 98 N.E. 616 (1912). The common- law principle of caveat emptor or purchasing at one's peril presupposes that the buyer is on an equal footing with the seller and that he relies on his own reasoning and judgment. Barnard v. Kellogg, 77 U.S. (10 Wall.) 383, 19 L.Ed. 987 (1871); Grass v. Steinberg, 331 Ill.App. 378, 73 N.E.2d 331 (1947). Though the rule was formerly of general application, presently it is clear from the trend of authorities that it has 'more or less been reversed, although not to the extent that the maxim 'caveat venditor' would apply.' 46 Am.Jur. 276, Sales, § 87.

Whether we consider implied warranties to be the opposites of or 'exceptions to * * * the maxim 'caveat emptor," the fact remains that there has been and is a continued and increasing tendency on the part of our courts to broaden and extend the area of activity of implied warranties. 46 Am.Jur. 520, Sales, § 337. Our Supreme Court employed in a general way the rationale of implied warranty even in much earlier days. Bailey v. Nickols, 2 Root 407 (1796); Lessler, 'Implied Warranty of Quality in Sales of Food,' 14 Conn.B.J. 47, 53 (1940).

' The law is clear that a contract includes not only what is expressly stated therein but also what is necessarily implied from the language used. Rockwell v. New Departure Mfg. Co., 102 Conn. 255, 287, 128 A. 302; 13 C.J. p. 558, § 521. * * * 'If it can be plainly seen from all the provisions of the instrument taken together, that the obligation in question was within the contemplation of the parties when making their contract, or is necessary to carry their intention into effect-in other words, if it is a necessary implication from the provisions of the instrument-the law will imply the obligation and enforce it.' 6 R.C.L. p. 856, § 244; Lawler v. Murphy, 58 Conn. 294, 311, 20 A. 457 * * *.' Leventhal v. Town of Stratford, 121 Conn. 290, 295, 184 A. 587, 588 (1936). It may be stated that the law of express and implied warranty is a part of and is distinguished in the Uniform Commercial Code. General Statutes §§ 42a-2-313-42a-2-318. Therein it appears that implied warranty may exist where no specific promise is made by the seller to the buyer, but where the...