Gustafson v. Dunman, Inc.

SHINN, P. J.

Defendant Dunman, Inc., a corporation, erroneously sued herein as Dunham, Inc., appeals from a judgment in favor of plaintiffs for alleged breach of warranty in the sale to them of a residence constructed on a city lot. The appeal is upon the judgment roll and other records, exclusive of oral proceedings. There is also an appeal by defendant Brown, who had judgment of nonsuit, from an order respecting costs awarded to him. Other individual defendants prevailed and are not parties to the appeal.

The facts as found were that Dunman, Inc., had purchased the lot from one Steinkamp, who had graded it for residential use by cutting down a part of the lot and creating upon part of it a fill which was not compacted. In the course of construction of a house by Dunman the property was sold to plaintiffs. The house was located partly on the filled ground, which fact was known to Dunman, although he did not know that the fill had not been compacted. Plaintiffs had no knowledge that a fill existed on the building site. The part of the fill upon which the house partially rested sank, resulting in the settling of a part of the building. The court found that plaintiffs before making their purchase made no inspection of the ground upon which the building rested and that none of the defendants was guilty of negligence or fraud.

The complaint was in three causes of action. The first cause of action sounded in fraud and alleged false representations and concealment with respect to the condition of the soil and the compaction of the fill. The second cause of action incorporated the first cause of action and accused the defendants of negligence in the construction of the building upon filled land. The third cause of action incorporated the first cause of action and alleged that defendants agreed to sell plaintiffs a parcel of real property which would support a residential building thereon, which they failed to do. In the pretrial proceedings plaintiffs waived any claim of fraud, apparently

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relied upon their claim of negligence, and regarded their third cause of action as one for breach of warranty.

Upon the appeal plaintiffs assert no claim under their cause of action for negligence in the construction of the building or in the sale of the property. They rely solely upon their third cause of action and their theory of breach of warranty.