Doran v. Milland Development Co.

DOOLING, J.

Appellant is a corporation engaged in the construction of new homes and the sale of such homes to members of the public. In 1947 appellant sold a new home so built by it in the city of Mill Valley to respondent Rossie M. Doran and her husband, who died in 1949. In April of 1953 by reason of the fact that a portion of the bedroom floor collapsed under the weight of a bed Mrs. Doran first discovered that the foundations of the house were infested with a wood-destroying fungus and was obliged to pay $2,-309.51 for necessary repairs. Suing on her own behalf and as administratrix of her husband’s estate she recovered judgment. The action sounded in fraud.

The evidence most favorable to the judgment showed that the fungus-infestation was caused by insufficient ventilation of the sub-floor area, that the house as built had eight air-vents of the louvre type which were insufficient for the purpose, whereas the building ordinance of the city of Mill Valley required 17 vents covered with galvanized wire. The evidence further showed that appellant’s salesman represented to Mr. and Mrs. Doran that “the foundation was properly built”; that neither appellant’s officers nor its contractor, who built the house for it, was familiar with the Mill Valley building ordinance or its requirements as to sub-floor ventila

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tion although they knew that there was such an ordinance; that they relied on the building inspector of the city to call their attention, to any deviations in the plans from the requirements of the ordinance; that the inadequacy of the vents to comply with the ordinance was not called to their attention and that they believed because of this that the house as constructed complied with the ordinance. The Dorans were not informed that appellant was riot familiar with the requirements of the building ordinance. Mrs. Doran testified that she would not have purchased the property if she had known that it was not properly vented.

The trial court found that appellant’s salesman made the representation “that the foundation was properly built”; that appellant failed to inspect the Mill Valley building ordinances, that appellant concealed this fact from the Dorans, but that appellant honestly believed at the time that it had complied with said ordinances. The court further found that the Dorans would not have bought the property if they had known of the defective construction.