Desmond v. Standard Bond & Mortgage Co.

WOOD (W. J.), J.,

pro

tem.

Plaintiff purchased from defendant on March 3, 1920, a lot in the city of Long Beach, upon which there had just been constructed a small dwelling-house. Defendant was then engaged in the business of building and selling houses. Plaintiff moved into the house shortly after she purchased it and soon thereafter the floors bnckled and settled and most of the plastering fell from

[203]

the walls. Finally she was compelled to move away from the house while repairs were being made. She alleged in her complaint that defendant represented to her before the purchase that the house had been constructed in a first-class manner, with first-class plastering and painting and with a first-class foundation, having underpinning posts not more than three feet apart. These representations she alleged were false and were made by defendant with intent to defraud her and in a manner not warranted by the information defendant had at the time. The trial court found plaintiff’s allegations to be true and rendered judgment in plaintiff’s favor for the sum of $1,000, the difference between the actual value of the property at the time of the purchase and the value which the premises would have had if the representations had been true.

Abundant evidence appears in the record to sustain the findings of the court. It was thoroughly established that there was an insufficient number of piers for the house to rest upon and that these had not been imbedded, but had been placed upon the surface of the ground. Rain-water had softened the soil and the foundations had sunk, thereby causing the floors to buckle and settle. The plastering was admitted to be so poor that replastering was necessary. Even the man who supervised the construction of the house testified that the plaster was not properly prepared and that it had not been mixed with hair. It would unnecessarily lengthen this opinion to enumerate the many serious defects in the construction of the house.

Defendant contends that the statements made to plaintiff concerning the construction of the dwelling were expressions of opinion only and were not false representations. The statements were made by one Neece, who sold the property as agent for defendant. Neece visited the house every day while it was being constructed and “O.K’d approximately all the bills.” While the record shows that plaintiff did, during the course of her testimony, say that Neece had told her he thought the lumber was good and that the purchase of the property was a good investment, the record also discloses that Neece made a number of positive statements of facts which cannot be classified as mere opinions. Defendant cannot on appeal select that part of the evidence which does not support the findings and present it as a