Price v. Mason-McDuffie Co.

KNIGHT, J.

Plaintiff appeals from a judgment in favor of defendant in an action for damages based on allegations of fraud committed by defendant in constructing a dwelling for plaintiff. The trial court found that defendant had perpetrated a fraud on plaintiff, but held that the action was barred by the statute of limitations. The principal question raised by the appeal, so plaintiff states in his opening brief, is the propriety of an order made by the trial court granting defendant leave to file a second amended answer. However, the determination of that question, as well as the others urged in support of the appeal, requires a consideration of the facts of the case and the trial court’s findings thereon.

At the time the transactions here involved took place, plaintiff was a professor of languages in the state university at Berkeley, and the owner of a lot situated on the side of a hill in that city. In June, 1923, he entered into a written contract with the defendant company for the construction of a dwelling on said lot. The plans and specifications therefor were drawn and prepared by C. R. Madison, an employee of defendant; and the house was completed in September, 1923. Eight days afterwards it was destroyed by fire; and in November, 1923, plaintiff entered into a second contract with said company

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to build another dwelling on the same lot. The plans and specifications therefor were likewise prepared by Madison. The house was built on the old foundations, and was completed and plaintiff moved into it on March 7, 1924. The contract price was approximately $7,300, which plaintiff paid in full in accordance with the terms of the contract. Soon after plaintiff moved into the house a number of serious structural defects became apparent to him, and the conditions grew steadily worse during the next several years. Broadly stated, the house progressively sagged, cracked, deteriorated and warped, and plaintiff was fully aware of these conditions, and on three or more occasions called upon the defendant company to repair the damage. The ceiling, walls and foundations cracked; several of the doors and windows jammed; the floors warped; the hearth began sinking; the back and sides of the house sagged, and it was feared that the chimney would fall. Within a year or so after moving into the house plaintiff called the company to repair the cracked plaster; and calling attention to the sagging of the walls of the house and the condition of the foundations, asked the company if something should not be done about it. He was informed that the company had built the house in accordance with the plans and specifications, and that the damage was not caused by faulty construction, but was due to the fact that the house was built on the side of a hill. On that first occasion plaintiff paid the company between $50 and $100 for making the repairs. About two years later it became necessary to summon the company again to make other repairs, for which plaintiff paid an additional $250. In 1929 he called on the company again, this time to make extensive repairs to the foundations, for which he paid approximately $200 more; and between 1934 and-1935 more repairs were necessary, for which the company was also paid. Most if not all of the repair work was done under the direction of two company employees named Nagle and Pusey. In 1936 plaintiff left Berkeley on his sabbatical leave, and upon his return in 1937 found the dwelling in a state of collapse; and after waiting a week for the defendant company to send an expert to inspect the premises, plaintiff employed Mr. Wagenet, a licensed architect, to do so and to perform such work as was necessary to prevent the house from slipping down the hill. For the work performed under the direction of Mr. Wagenet plaintiff paid some $1,170. The complaint in the present action was filed on June 11, 1937.