Beresford v. Horn

SHINN, P. J. Plaintiffs sued for damages for alleged fraud of the defendants in the sale to them of a residential property. The court sustained a demurrer to plaintiffs’ third amended complaint without leave to amend on the ground that the action was barred by the statute of limitations. Judgment of dismissal was entered and plaintiffs appeal.

The question is whether the plaintiffs who purchased and lived in a dwelling house which failed in numerous obvious particulars to meet the requirements of local building ordinances were charged with a duty to discover the non-conformance of the structure during the first thirteen months of their occupancy. The purchase was made July 29, 1948, plaintiffs alleged discovery of the nonconforming conditions about May 1, 1952, and the present action was commenced September 2, 1952. We agree with the conclusion of the trial [90]court that the action was barred by the provisions of subdivision 4, section 338, Code of Civil Procedure, which limits the time for suing on the ground of fraud to three years from discovery of the fraud.

It was not alleged that defendants made any affirmative representations that the building met the requirements of the ordinances. It was alleged that the building had been constructed without a building or occupancy permit, that defendants had knowledge of that fact, knew that the construction violated the ordinances and intentionally and fraudulently concealed those facts from plaintiffs. It was not alleged that plaintiffs were hindered in any manner in making an investigation or persuaded by the defendants not to make one. The facts as to discovery were stated; in May 1952 plaintiffs called in a plumber, a plumbing permit was sought, the building was inspected and plaintiffs were informed of numerous particulars in which the building failed to conform to the ordinances.

The complaint alleged: Sometime before 1920 a single room was built; in 1926 a room 10' x 24' was added and adjoining it a kitchen, bathroom and service porch. The east half of the ceiling in the kitchen slopes from a height of 7 feet to 6 feet, 6 inches; the west half slopes from a height of 8 feet to 5 feet, 10 inches-, in the bedrooms the ceilings slope from 7 feet to 6 feet, 6 inches-, in the service porch the west half of the ceiling slopes from 7 feet to 5 feet, 10 inches-, in the bathroom the ceiling is 7 feet in height. Bathroom ceilings are required by ordinance to have a height of 7% feet, the other rooms 8 feet. In rooms with sloping ceilings the specified height is required in only one-half of the room; the portion with a ceiling of less than 5 feet is not included in the computation of the area of the room. The electric wiring was improper and improperly installed. There is no foundation under the service porch and bathroom; the ordinances require foundations. The kitchen and bedroom are built on a slab at the level of the surrounding ground; the ordinances require that such a slab be elevated above the surrounding ground. The plumbing was installed without the required traps and vents. Terra cotta pipe was used under the house; cast iron pipe was required. Plaintiffs are inexperienced in building construction and they had no knowledge that the construction was improper in the specified particulars. They were not familiar with the building ordinances. Plaintiffs have been ordered to demolish a 10' x 24' room and a 15' x 24' addition; also to make the wiring and plumbing conform