Zimmerman v. Boughton

SALSMAN, J.

Plaintiffs brought this action for damages based on alleged fraudulent misrepresentations made by defendants Flood and Garoutte in the course of the sale of certain property owned by defendants Boughton. Plaintiffs also sought exemplary damages. Defendants Boughton filed a cross-complaint against defendant Flood, and also against a Mr. and Mrs. Champion, who were the former owners of the property. This action was subsequently dismissed and is not involved in this appeal.

After a jury trial, a verdict was rendered against all defendants in the amount of $2,250 for compensatory damages. Exemplary damages in the sum of $4,875 were assessed against the defendants Flood and Garoutte, and defendants appeal.

Liability of the Boughtons depends, under the laws of agency, on the liability of defendants Flood and Garoutte. They are liable if their agent, Flood, is liable. Any references

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to “defendants ’’ herein will refer only to Flood and Garoutte unless the contrary is indicated.

Plaintiffs were seeking to purchase a house; they saw Flood’s advertisement of a house for sale and this brought them to his real estate office. Mrs. Zimmerman first talked to defendant Garoutte, a real estate salesman working in the office of the defendant Flood. Garoutte took Mrs. Zimmerman to see the property involved in this action.

This house can be described generally as a duplex. There is an apartment downstairs, and one upstairs that can be reached only by an outside stairway. The upstairs apartment is completely separate from the downstairs one. The former is composed of a kitchen, bedroom, bathroom, and another small room.

The upstairs of this house had originally been an attic. It had been converted into living quarters in 1939. The ceilings in the upstairs apartment,' formerly the attic portion of the house, were lower than the statutory minimum of 8 feet as now required by section 16057 of the Health and Safety Code.

Mrs. Zimmerman was interested in this property, as she and her husband had been looking for income property. Defendant Garoutte stated to her as they viewed the property that the upstairs apartment had been rented and could then be rented. Thereafter, they picked up Mr. Zimmerman and took him to see the property. Defendant Garoutte again stated that the property was rentable, and there was some discussion regarding the rental the upstairs apartment would bring. Mr. Zimmerman, who is 5 feet 7 inches tall, was able to reach up and touch the ceiling. In response to a question, defendant Garoutte assured him there was no problem because of the height of the ceiling.