Wright v. Carpenter, 1334

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Citation: 579 S.W.2d 575
• Docket Number: No. 1334,1334
• Parties: Kenneth WRIGHT ex ux., Appellants, v. Lawrence CARPENTER, Appellees.
• Decision Date: 29 March 1979

Page 575

579 S.W.2d 575 Kenneth WRIGHT ex ux., Appellants,
v.
Lawrence CARPENTER, Appellees. No. 1334. Court of Civil Appeals of Texas, Corpus Christi. March 29, 1979.
Rehearing Denied April 19, 1979.

Page 576

John C. North, Jr., North, White & Blackmon, Corpus Christi, for appellants.

W. DeWitt Alsup, Alsup & Alsup, Corpus Christi, for appellees.

Page 577

OPINION

YOUNG, Justice.

This is an appeal from a suit alleging fraud relative to a real estate transaction. Appellees, Lawrence Carpenter and Wilma P. Carpenter, sued appellants, Kenneth Wright and Jean Wright, for fraud in connection with their purchase of appellants' home. In short, the appellees alleged that the appellants represented that their home had a roof in good condition, but that after they moved in, the roof leaked and appellees had to replace the roof. Trial was to the court without a jury and thereafter the trial court filed findings of fact and conclusions of law. The court found the Wrights liable in the amount of $867.75, which is one-fourth of the value of the new roof. We affirm.

The record fairly indicates the following events. On October 2, 1976, appellees, at that time residents of Missouri, contacted Mrs. Grant, a realtor in Corpus Christi, and asked her to show them some homes suitable for their future retirement. Mrs. Grant took the appellees to the appellants' home. Appellees expressed an interest and there in the home asked the appellants several questions concerning the age of the home and more particularly the condition of the cedar shingle roof. Mr. Wright, at trial, testified, in response to this questioning, that he told Mr. Carpenter that he had had the roof previously inspected and that the inspector told him that the roof should be good another four to five years and that he offered to give Mr. Carpenter the inspector's name. He also claimed he told Mr. Carpenter that an insurance adjuster had also inspected the roof for hail damage and that the roof was repaired in various spots with metal "step-shingles." Mr. Carpenter reported that Mr. Wright told him about an inspector and that Wright offered to give Carpenter the inspector's name, but testified that Mr. Wright then stated factually that the roof would be good for another five years and that the roof was in good shape. Mr. Carpenter also denied that Mr. Wright had said anything about an insurance adjuster, hail damage or metal "step-shingles."

The parties then went outside to observe the house, but according to undisputed testimony, several large trees covered extensive portions of the front of the roof and its condition was not visible. Appellees signed a contract to purchase the home later that same day.

A few weeks later the appellees moved into the house, had the interior walls repainted, and had the trees in the front of the house trimmed. The trimmers advised the appellees that a number of shingles were missing and that the roof was rotten toward the front of the house. Several rains followed and the new inside paint began to run in streaks from leaking water. Appellees subsequently had the roof replaced.

At trial the appellant, Mr. Wright, testified that in the three years he and his wife had lived in the house prior to the sale herein that the roof had never leaked. Also at the trial, the roofer who replaced the roof testified that the new roof would last about 20 years and that the cost of the new roof was $3471.00.

Appellants bring forward six points of error. Appellants' point 1 contends that the pleadings and evidence do not support the judgment as a matter of law. More specifically, the appellants allege that the trial court used the cost of repairs as the basis for damages rather than the damage measure provided in Tex.Bus. & Comm.Code Ann. § 27.01 (1968), ¹ or in the alternative, if it did use a proper measure of damages, there was no pleading to raise an issue as to the measure of damages used.

We first note that within the text of appellants' brief they not only concede that section 27.01 does not supersede the common law measure of damages, but also concede that appellees have pled the elements necessary to prove fraud.

Page 578

Because of some apparent inconsistencies in the law, though, we will briefly consider appellants' contentions. Appellants primarily rely on Sibley v. Southland Life Ins. Co., 36 S.W.2d 145 (Tex.Comm'n App.1931, opinion adopted), for the proposition that the proper measure of damages in this case is the difference between the value of the real estate as represented and its actual value in the condition it was delivered at the time of the contract. The facts in Sibley are very similar to those in the case on appeal. There a purchaser sued to recover the costs required to complete some houses promised to be completed after the contract was entered into. But we note one primary distinguishing characteristic from the instant case; i. e., the Sibley appellate court assumed that the suit was brought exclusively under Section 27.01 (then Tex.Rev.Civ.Stat.Ann. art. 4004). With the statute as the exclusive basis for recovery, repairs (or costs of completion) were not a proper measure of damages. Accord: Huth v. Cater, 215 S.W.2d 270 (Tex.Civ.App. San Antonio 1948, writ ref'd n. r. e.); Payton v. City of Big Spring, 157 S.W.2d 975 (Tex.Civ.App. Eastland 1941, no writ); See 39 Tex.L.Rev. 108 (1960).

More recently, however, the courts have recognized the plaintiff's discretion to sue either under the statute, at common law or both. El Paso Development Company v. Ravel, 339 S.W.2d 360 (Tex.Civ.App. El Paso 1960, writ ref'd n. r. e.); (cited with approval in Stanfield v. O'Boyle, 462 S.W.2d 270 (Tex.Sup.1971); see also Woo v. Great Southwestern Acceptance Corp., 565 S.W.2d 290, 297-298 (Tex.Civ.App. Waco 1978, writ ref'd n. r. e.); Miller v. Schuman, 556 S.W.2d 97, 99 (Tex.Civ.App. El Paso 1977, writ ref'd n. r. e.); Collins v. Miller, 443 S.W.2d 298 (Tex.Civ.App. Austin 1969, writ ref'd n. r. e.); Maddox v. Worsham, 415 S.W.2d 222, 226 (Tex.Civ.App. Amarillo 1967, writ ref'd n. r. e.).

A case remarkably comparable with the instant case is Hughes v. Halliday, 471 S.W.2d 88 (Tex.Civ.App. Waco 1971, no writ). In Hughes, a real estate agent falsely represented that the air conditioning unit in a...