Summary
In Traverse, the court held that home buyers should be accorded "the benefit of comparison with ordinarily prudent persons of their station and experience confronted by the same or similar circumstances."
Summary of this case from Tipton v. NuzumOpinion
No. 34589
Decided May 16, 1956.
Vendor and purchaser — Real property — Claimed false representations by vendor — Purchaser's opportunity to inspect — Charge to jury — Caveat emptor.
APPEAL from the Court of Appeals for Cuyahoga County.
Florence M. Traverse and J. Harold Traverse began an action in the Court of Common Pleas of Cuyahoga County against William Harold Long and Grace B. Long to recover damages in the sum of $15,000, based on claimed false and fraudulent representations on the part of the Longs and their real estate agent as to the condition of a residence property in Rocky River, Ohio, owned by the Longs and sold by them to the Traverses under a written contract of sale dated May 22, 1952, followed by a warranty deed held in escrow and delivered to the recorder of Cuyahoga County on August 1, 1952.
The petition was met by an answer denying the material allegations thereof, and this was followed by a reply denying the material allegations of the answer.
In April 1952, the Longs entered into an "exclusive listing agreement" for the sale of their Rocky River property with the real estate firm of Maerkle-White-Huxtable-Auble Company. Huxtable of that organization took charge of the matter and showed the property to the Traverses on different occasions. The Traverses and Longs never met until the signing of the contract of sale.
The controversy involves particularly a considerable area of filled-in land on the north side of the property, supported by cribbing in the form of loosely placed railroad ties which had rotted and deteriorated to some extent and were partially covered by a growth of vines, on which filled-in land a driveway and parking area, leading into a garage, had been constructed; and the representations made with respect thereto.
Before the introduction of evidence, the jury viewed the premises. At the trial there was much conflicting and irreconcilable testimony. During the comparatively short time the Longs owned and occupied the premises, holes of varying sizes developed at the north edge of the driveway and parking area, and these were filled with slag covered over with a surfacing material. The repairs so made were visible.
As to his representations, Huxtable testified:
"You (J. Harold Traverse), asked me whether I thought that that support and so forth was sound. And I suggested that we walk up around that area and you look at it yourself, which you did, which we did together. And I expressed the thought that I thought it was in sound condition because Mr. Long had told me that it was."
The Traverses testified there were positive misrepresentations of known material facts to them by Huxtable on which they relied. The Longs testified that they had made no representations to Huxtable, Huxtable insisted that representations had been made by them, and the Longs contend that any representations made by Huxtable were based on his honest opinion and were not wilfully false representations with respect to known material facts.
At the close of the evidence and before oral arguments to the jury, both plaintiffs and defendants submitted a number of special instructions, some of which were given to the jury by the trial court.
After the court's general charge and at the request of the defendants, certain interrogatories were submitted to the jury, which, with the answers thereto, are as follows:
"No. 1. Did you find that there was a written contract of employment between the agent, Huxtable, and the defendants, Mr. and Mrs. Long? Answer: Yes.
"No. 2. If your answer to interrogatory No. 1 is `yes,' then state the date of such contract of employment. Answer: April 28, 1952.
"No. 3. Did the agent, Huxtable, make any representations to Mr. and Mrs. Traverse in reference to the condition of the parking area and driveway? Answer: Yes.
"No. 4. If your answer to interrogatory No. 3 is `yes,' then state what representations were made.
"Mr. Huxtable told Mr. Traverse that the parking area and driveway were in good condition and told Mr. Traverse to look for himself.
"No. 5. State whether Mr. and Mrs. Long, personally, made any false representations of fact to Mr. and Mrs. Traverse prior to the time they signed the written offer to purchase, which is dated May 22, 1952. Answer: No."
The jury returned a unanimous verdict for the defendants, motion for a new trial was overruled and judgment was entered in accordance with the verdict.
An appeal on questions of law was taken to the Court of Appeals which reversed the judgment below and remanded the cause to the Court of Common Pleas for a new trial. In its judgment entry, the Court of Appeals said:
"The court erred in giving to the jury at defendants' request, the following instruction in writing before argument, over plaintiffs' objection:
"`The court instructs you, as a matter of law, that if you find from the evidence that Mr. and Mrs. Traverse had full opportunity of inspecting the property they purchased from Mr. and Mrs. Long and could easily and readily ascertain its condition by such inspection and they failed to do so, the injury, if any, which they may have sustained is the result of their own negligence and you must find in favor of the defendants.'
"The court finds no other errors in the proceedings below which were prejudicial to the rights of plaintiffs-appellants and therefore overrules all assignment of errors except as above set forth."
The cause is now here for decision on its merits pursuant to the allowance of a motion to certify the record.
Mr. A.H. Dudnik and Mr. J. Harold Traverse, for appellees.
Mr. Owen C. Neff and Mr. Clarence K. Snyder, for appellants.
This court has examined the bill of exceptions and agrees with the Court of Appeals, except as to the prejudicial character of the special instruction quoted above.
The jury, as the trier of the facts, was confronted with conflicting evidence and had the right to act on those facts established by the evidence it considered the more credible.
Taken by itself, the special instruction in dispute is not as complete as it ought to have been and is probably worded too strongly against the plaintiffs. It might well have included additional language embracing the element of latent defects and contained a statement according plaintiffs the benefit of comparison with ordinarily prudent persons of their station and experience confronted by the same or similar circumstances. But, the undisputed evidence shows that plaintiffs inspected the entire premises on different occasions and knew that the driveway and parking area rested on filled-in ground supported in some manner at the extreme north side; and that they also observed the slag-filled holes in this area. The jury's answer to interrogatory No. 4 suggests that it thought Traverse, an attorney at law, had been sufficiently put on notice to make a more thorough investigation, either by himself or with the assistance of an expert, which would have disclosed the defects in that part of the premises complained of, and that he had ample time and opportunity to do so before buying the property.
Too, the jury evidently reached the conclusion that there were no deliberately false and fraudulent representations of known material facts to the Traverses, that the Traverses had the full and unimpeded opportunity to examine the premises, and that they were not as diligent as they should have been in conserving their own interests.
The principle of caveat emptor applies to sales of real estate relative to conditions open to observation. Where those conditions are discoverable and the purchaser has the opportunity for investigation and determination without concealment or hindrance by the vendor, the purchaser has no just cause for complaint even though there are misstatements and misrepresentations by the vendor not so reprehensible in nature as to constitute fraud. See 55 American Jurisprudence, 553, Section 79, and 91 Corpus Juris Secundum, 908, Vendor and Purchaser, Section 51.
Upon the basis of what has been said, a majority of this court is of the opinion that it was not reversible error for the trial court to have given to the jury the special instruction referred to, in the light of all the facts and circumstances of the case. Therefore, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
MATTHIAS, HART, ZIMMERMAN, STEWART and BELL, JJ., concur.
WEYGANDT, C.J., dissents on the ground that the Court of Appeals was correct in holding that the defendants' specially requested charge to the jury was inadequate and prejudicially erroneous under the particular circumstances shown by the evidence in this record.