Sammer v. Ball

Opinion

GARGANO, Acting P. J.

Appellants Frank and June Ball appeal from a judgment entered on a cross-complaint. The facts as gleaned from the settled statement and the depositions are these:

In 1961 appellants acquired certain commercial property in Ceres, California, known as the Lazy Wheels Trailer Park. Appellants decided to increase the number of trailer spaces and engaged Paul Holmdhal to prepare the drawing which was needed to acquire state and city approval. The drawing Holmdhal prepared designated 6-inch sewer lines to accommodate the new spaces and contained a note stating, “% " water line with %" riser and

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branch takeoff. ...” Appellants gave one copy of the drawing to the state inspector and one to Mr. Carlin, their plumber, to take to the building official of the City of Ceres in order to secure a building permit. They kept one copy at the trailer park.

At the building office, Carlin was told that 4-inch sewer lines were sufficient, and a permit was issued accordingly; the unrevised drawing was placed in the building officer’s file..

In January 1962, appellants sold the Lazy Wheels Trailer Park to respondent Muriel M. Sammer; they left their copy of the drawing at the trailer park, and Mrs. Sammer used it to make notes about trailer spaces. In March 1963, Mrs. Sammer sold the property to Ralph, Ozzie and Dominik Caloiaro. Prior to the sale, she told Ralph Caloiaro that the trailer park was serviced by 6-inch sewer lines and a 1-inch water main. When the Caloiaros discovered that the sewer lines were 4 inches and the water main

[610]

was

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inch, they brought this action against Mrs. Sammer for damages. Respondent in turn filed a cross-complaint against appellants, alleging that appellants falsely and fraudulently misrepresented the sizes of the sewer lines and the water main to her.

At the conclusion of a one-day court trial, the trial judge filed a decision ordering judgment in favor of the plaintiffs Caloiaro, on their complaint. The court ordered judgment in favor of the cross-defendants on the cross-complaint, stating that the cross-complaint was not for indemnification but was “an outright declaration of the fact that the Sammers had been damaged by reason of misrepresentation of the Balls, and there is nothing in the cross-complaint that gives this court any power whatsoever to grant a judgment on behalf of the Sammers as against the Balls.” Mrs. Sammer, then, filed a memorandum pointing out that whether she was entitled to indemnification against appellants was made an issue in the pretrial order; the pretrial order was adopted before appellants appeared in the action, but their counsel stipulated that the matter could proceed to trial without further pretrial conference proceedings. Upon receiving the memorandum, the court reopened the trial on the issue of damages. Afterward, the court entered judgment in favor of respondent on the cross-complaint on the theory of implied indemnity.