Kramer v. Musser

WARD, J.

Plaintiff brought this action to recover dam-' ages for false representations made in the negotiation and sale to him of a parcel of real property, on which was erected a three-story building divided into four residential flats or apartments. The representations were that the building was free from termites and dry rot; that the entire roof was covered with new roofing material, and that the hot and cold water pipes in the plumbing system were of copper and brass respectively.

The trial court found that the representations as to the freedom of the building from termites and dry rot had been made as alleged; that they were false and that plaintiff re

[944]

lied on them in making the purchase. It awarded him damages in the sum of $1,350 on that account. It made no findings as to the truth or falsity of the remaining allegations. Defendant appeals from the judgment.

Resolving all conflicts in the evidence in favor of the court’s findings the evidence may be summarized as follows: The sale was negotiated by a real estate broker. The plaintiff, a successful business man with some experience in real estate transactions, accompanied by Mrs. Leona Hurst and a Mrs. Maushardt—the latter an employee of the broker —visited the premises late in the afternoon of March 14, 1938, for the purpose of examining them. This examination was cursory and occupied little time owing to the failing light, and it was then arranged that a further and more thorough examination should be made. Accordingly, the above parties, accompanied by defendant, went out to the property on March 15th. On this occasion the defendant conducted the parties through the entire building, showing them each apartment, the roof and basement. At this examination plaintiff noticed that one of the hot water pipes, represented to be of copper, was fabricated of brass; also that there was some discoloration of the ceiling in one of the upper apartments, indicating perhaps a leak from the roof. In the basement were a number of lockers or small storerooms used in connection with the several apartments. With one exception these were locked, the exception being a locker used by the defendant, who occupied one of the apartments. Defendant opened this storeroom and stepped in, followed by Mrs. Hurst. This lady— who later testified at the trial as a witness for the plaintiff— described the locker as practically filled with miscellaneous articles including step-ladders, boards, old clothing and, at the far end, a covered box-spring mattress up-ended and leaning against the wall. Defendant explained that the articles therein were his personal property and that he would have them removed and the place cleaned up. No particular examination was made of this storeroom, and Mrs. Hurst described the visit as cursory and rushed.