Gilbert v. Corlett

O’DONNELL, J. pro tem.

*

This is an action for damages for fraud perpetrated by defendant on plaintiffs in the sale of certain residence premises in the city of Berkeley. The jury returned a verdict for plaintiffs in the sum of $6,500 on which judgment was entered. Defendant appeals from the judgment.

On November 28, 1953, plaintiffs, who were in the market for a residence, looked at defendant’s premises. The premises consisted of a two-story house located on a steep hillside lot in the Berkeley hills. Plaintiffs spent several hours inspecting the house. There was considerable unevenness in the floors throughout the house extending down to the foundation. Mr. Gilbert, in discussing this condition with defendant, said that he was not particularly concerned with the existing condition but that he wanted to make sure that the condition would not worsen, and that he would therefore like to have an engineer inspect the property. Defendant replied that, anticipating that such a question might be raised, he had had an engineer, Mr. Piatt, make an inspection and report. Defendant there

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upon showed plaintiffs that report. The report dated November 6, 1953, stated that the house is in excellent condition, that the ground structure is good and “such movement as there may be is minor in amount and does not threaten the structural safety of the building.” The report further states that “. . . when the times comes when the accumulated distortion would make repairs imperative, the cost of such repairs will be a minimum. So far as I can see this will not be required for another twenty years. ...” The following day, November 29, 1953, plaintiffs signed a contract of sale and in January 1954, they moved into the house. About two weeks later, during a rainstorm, a crack appeared in the fireplace which gradually widened to about 2 inches. Later the house pulled away from the steps. Both chimneys in the house developed cracks. Cracks also developed in the dining room and basement.

In September of 1956, plaintiffs learned that prior to the Piatt report defendant had had another engineer’s inspection and report made by one Paul A. Swafford. When asked by plaintiffs about this report defendant said he could remember no one by the name of Swafford. Later he admitted knowledge of the report. The Swafford report was based on an inspection made in April 1953. In his report, Mr. Swafford says that, “Eventually, the house will become uninhabitable and valuless [sic].” And further that, “With the present and continuing settlement the lot is of no value.” Defendant was duty bound to make known to plaintiffs the contents of the Swafford report.