Rogaff v. Bartles

HOUSER, J.

On terms and conditions set forth in a contract entered into between plaintiff and defendant, it was agreed that plaintiff would buy from defendant and defendant would sell to plaintiff a certain lot or parcel of land. Among the conditions which were stated in the contract were “Lot is B Zone. No setback, no fill, and no restrictions

[430]

against building a four-story apartment house.” In connection with such transaction, following the delivery to plaintiff of a deed of the property and the commencement by him of the construction of a four-story apartment house thereon, in the course of the excavation for the foundation for said building it was discovered that the lot had been filled; which fact induced the outlay by plaintiff of a considerable sum of money in payment of labor and materials for the increased depth of excavation for foundation, brick and cement walls, etc. Thereafter, “relying upon the terms and conditions of the aforesaid agreement”, plaintiff brought an action for damages against defendant. Preliminary to the rendition of a judgment in favor of plaintiff, from which defendant appeals to this, court, in substance the trial court made its finding of fact that the following allegations of the complaint were true, to wit:

“That thereafter, relying upon the terms and conditions of the aforesaid agreement, plaintiff commenced building operations for the erection of a four-story apartment house building; that during the course of the excavation for the foundation for said building it was ascertained that the ground on said lot was filled; that by reason of said filled ground plaintiff has suffered damages in the sum of three thousand seven hundred and fifteen dollars, forty cents ($3,715.40), being the amount expended by him for additional excavating and concrete necessary to build a foundation for aforesaid building, over and above the amount required for the usual and ordinary foundation necessary for the aforesaid building, owing to the fact that plaintiff was forced to make much deeper excavations to reach solid ground and which said deeper excavation and foundation were ordered by the Building Department of the City of Los Angeles.”

On the trial of the action, over the objection of defendant, evidence was introduced which showed the amount of money expended by plaintiff in making extra excavations, constructing walls, etc., made necessary in the construction of the building by reason of the greater required depth of such excavations on account of the upper part of the soil on the property in question having been filled. And such evidence furnishes the sole support for the finding by the trial court as to the damages suffered by plaintiff.