Jolin v. Spira

DRAPEAU, J.

On January 17, 1946, plaintiffs as buyers, the individual defendants as sellers and the corporate defendant as escrow agent, negotiated the sale of real estate by means of escrow instructions, one of the conditions made therein by the buyers being: “Hold for me termite clearance showing the property free and clear of infestation.”

During the pendency of the escrow, the escrow agent submitted to plaintiff Wm. J. Jolin a document dated February 18, 1945, denominated “Termite Clearance,” executed by Atlas Termite Service, addressed to Howard G. Golay Realty Company, the broker handling the instant transaction, which recited as follows:

“This is to certify that we have treated the above property for the eradication of dry wood and subterranean termites. This control service is for a period of two years with a semiannual inspection. ’ ’

While this document specifies property at a different address, it was established by testimony given in behalf of said termite company that the clearance covered the property which is the subject of this litigation.

[358]

This certificate was handed to plaintiff Vm. J. Jolin by an officer of the escrow company, who testified: “I told him this was the report that was on the property and it was a year old at the time it was handed to him, and that it was a two-year guarantee and for him to approve it—or examine it and approve it. . . . It was in the old escrow file wherein Mr. Spira and Mr. Grimm had purchased the property.” In explanation, this witness testified that in checking the file and getting ready to close the escrow, she found that no termite clearance had been filed; that Mr. Golay, the broker, told her to take the clearance filed in escrow at the time of the sale of the property to Messrs. Spira and Grimm the year before. When asked why she cleared this document in connection with the instant transaction, this witness replied: “Because it was approved by the buyer as satisfactory.”

Defendant Othmar Grimm testified that “I told Mr. Golay we should give any inspection Mr. Jolin wants, and Mr. Golay said, ‘ The termite inspection is not necessary because the certificate on hand is satisfactory to Mr. Jolin. He doesn’t want a termite inspection, a new one, because the certificate and services are paid in advance for two years. Therefore, he wants to have this certificate transferred. ’ ”