Walton v. Petty

• Decision Date: 09 May 1963
• Docket Number: No. 1,No. 39984,39984,1
• Citation: 131 S.E.2d 655,107 Ga.App. 753
• Parties: Robert A. WALTON v. Jack PETTY
• Court: Georgia Court of Appeals

Page 655

131 S.E.2d 655

107 Ga.App. 753

Robert A. WALTON v. Jack PETTY.

No. 39984.

Court of Appeals of Georgia, Division No. 1.

May 9, 1963.

Syllabus by the Court

The law implies no warranties as to the quality or condition of an existing new house in favor of a vendee by the vendorbuilder; therefore, the plaintiff's petition, which sought damages from the defendant vendor for property damage allegedly resulting from the defendant's violation of a city building code ordinance in the building of the house before the plaintiff contracted to purchase it, and which alleged no express warranties as to quality or condition, failed to state a cause of action and the trial court properly sustained the ore tenus motion to dismiss the petition and dismissed the action.

Robert A. Walton brought this action on October 11, 1962, against Jack Petty, for damages for property damage allegedly caused by the defendant's negligence in having failed to comply with a building code ordinance. The petition as amended alleged substantially as follows: On October 12, 1958, the defendant, a building contractor, conveyed to the plaintiff by warranty deed, for a consideration of $26,500, a certain lot in East Point, Georgia and a new house thereon constructed by the defendant. Thereafter, wind raised one end of the carport roof, causing damages of $1,500 to a carport wall. This alleged damage was caused by the defendant's knowingly failing to secure the carport roof to the walls, in violation of a valid and existing city ordinance. The fact that the roof was not secured as required by the ordinance was concealed and the plaintiff did not learn of it until August 13, 1962. The property had a reasonable market value before the collapse of $26,500 and afterwards of $25,000. The prayer is for damages of $1,500.

The defendant filed a plea, alleging that the cause of action alleged in the petition was barred by the statute of limitation since the house was constructed more than four years prior to the filing of the action, and made a demurrer ore tenus. The court sustained the plea and the demurrer and dismissed the action, to which judgments the plaintiff excepts.

Albert A. Roberts, East Point, for plaintiff in error.

Lipshutz, Macey, Zusmann & Sikes, Samuel N. Frankel, Atlanta, for defendant in error.

FELTON, Chief Judge.

The issue raised by this appeal is whether or not the law implies a warranty as to quality or condition in favor of the vendee of an existing new house by the vendorbuilder of the house.

Looking first at the Georgia law, we find that '[i]n a sale of land there is no implied warranty of title,' Code § 29-302, and that '[a] covenant of general warranty relates only to the title * * *.' Finn v. Lifsey, 169 Ga. 599(1), 150 S.E. 908; Rabun Mineral & Devel Co. v. Heyward, 171 Ga. 322, 328, 155 S.E. 324; Sawyer Coal & Ice Co. v. Kinnett-Odum Co., 192 Ga. 166, 169(2), 14 S.E.2d 879. Implied covenants are not favored in the law. McDonough v. Martin, 88 Ga. 675, 16 S.E. 59, 18 L.R.A. 343. In Kuhr Bros., Inc. v. Spahos, 89 Ga.App. 885, 81 S.E.2d 491, the vendee of a house sued the vendor, who had contracted to furnish a furnace for the house, and the contractor who installed the furnace, for damages alleged to have been caused by a fire resulting from the improper installation of the furnace in violation of a city ordinance. This court affirmed the judgment of the lower court in overruling the general demurrer to the petition, basing the decision upon the proposition that '[o]ver and beyond the obligation in contracts, it is fundamental that every person owes a duty to exercise ordinary care not to supply by sale, lease, etc., a thing, instrumentality, or building which is so defectively constructed or conditioned as to be imminently dangerous to the person to whom supplied or subject to damages itself by reason of its condition,' citing Moody v. Martin Motor Co., 76 Ga.App. 456, 46 S.E.2d 197 and Restatement of the Law of Torts, p. 1039, § 388. Althought the obiter dicta in this case seems to extend the liability of a vendor to damages for a building which is so defectively constructed as to be subject to damages itself by reason of its condition, the implications of the holding should not be extended beyond the facts in that particular case. In the Moody case, supra, cited by the court in Kuhr Bros., supra, as well as in the Kuhr Bros. case, the vendor had caused the damages by his negligent performance of a contract with the vendee, whereas, in the case sub judice, the alleged negligence occurred prior to the creation of the contractual relationship, when the defendant owed no duty of care to the plaintiff.

In Bray v. Cross, 98 Ga.App. 612, 106 S.E.2d 315, the suit was for alleged personal injuries, rather than for property damage, as in the Kuhr Bros, case, supra, and in the instant case, therefore the statement by the court that 'the same law is applicable inasmuch as both cases involved the liability of a seller for knowingly furnishing realty that was imminently dangerous without advising the purchaser of such fact,' is obiter dictum, and hence not authority for the proposition that the laws of liability of the vendor for property damage and for personal injuries are the same.

Since we feel that this specific point has not been sufficiently...