The doctrine of caveat emptor applies to the sale of real property and there can be no warranty of quality or condition implied in such sales. 4 Williston, Contracts, (Rev.Ed.), § 926; 8 Thompson, Real Property, (Perm.Ed.), § 4599; 55 Am.Jur., Vendor and Purchaser, § 368; 92 C.J.S. Vendor and Purchaser § 578; Steiber v. Palumbo, 219 Or. 479, 347 P.2d 978; Allen et ux. v. Reichert, 73 Ariz. 91, 237 P.2d 818; Dennison v. Harden, 29 Wn.2d 243, 186 P.2d 908; Shapiro v. Kornicks, 103 Ohio App. 49, 124 N.E.2d 175; Kerr v. Parsons, 83 Ohio App. 204, 82 N.E.2d 303; Harmon Nat. R. E. Corp. v. Egan, 137 Misc. 297, 241 N.Y.S. 708; Gilbert Construction Co. v. Gross, 212 Md. 402, 129 A.2d 518; Berger v. Burkoff, 200 Md. 561, 92 A.2d 376; Combow v. Kansas City Ground Investment Co., 358 Mo. 934, 218 S.W.2d 539; Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66. When a complaint wholly fails to state a cause of action it is subject to attack by a general demurrer and will not support a judgment.
"It is the general rule of law that implied warranties as to quality or condition do not apply to realty. Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818."Voight arose from the failure of an air conditioning system sold as part of a new house.
In addition, the Smiths argue that the home was defective and, therefore, they contend that they are entitled to rescission for breach of an implied warranty of fitness. Some of the earlier decisions by this court have held that the rule of implied warranties is inapplicable to the sale of real property. Allen v. Reichert, 73 Ariz. 91, 93, 237 P.2d 818, 819-820 (1951); Voight v. Ott, 86 Ariz. 128, 132, 341 P.2d 923, 925 (1959). The theory of the older cases was that the seller does not impliedly warrant the conditions of the premises because the provisions of the contract of sale are deemed to merge into those of the deed, which embodies the full agreement of the parties.
Lott v. Taylor, 60 Idaho 263, 90 P.2d 975; Nelson v. Hoff, 70 Idaho 354, 218 P.2d 345; Petersen v. Holland, 79 Idaho 63, 310 P.2d 810; Cooper v. Wesco Builders, 76 Idaho 278, 281 P.2d 669; Scogings v. Love, 79 Idaho 179, 312 P.2d 570; Barron v. Koenig, 80 Idaho 28, 324 P.2d 388; Faria v. Southwick, 81 Idaho 68, 337 P.2d 374; Walker v. Nunnenkamp, 84 Idaho 485, 489, 490, 373 P.2d 559. There are no implied representations or warranties in the sale of real property. Dennison v. Harden, 29 Wn.2d 243, 186 P.2d 908, 912; Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818, 819, 820; Williston on Contracts Revised Ed. Paragraph 2603. Grant or denial of new trial is discretionary with trial Court.
A building contract which includes in its terms the plans and specifications thereof, and providing that the work is to be done in a good and workman-like manner, imposes no greater duty upon the contractor than that he perform work in accordance with the plans and specifications in a good and workman-like manner. 9 Am.Jur., Building and Construction Contracts, § 10; Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818; Gilbert Const. Co. v. Gross, 212 Md. 402, 192 A.2d 518; Lancaster v. Conn. Mut. Life Ins. Co., 92 Mo. 460, 5 S.W. 23. Acceptance and occupation of a house by the purchaser constitutes a waiver of full performance or defective performance of the contract for construction. Restatement, Contracts, §§ 411, 412; 9 Am.Jur., Bldg. Const. Contracts, §§ 52, 53, 54; Aarnes v. Windham, 137 Ala. 513, 34 So. 816; Garbis v. Apatoff, 192 Md. 12, 63 A.2d 307; Morgan v. Sheppard, 156 Ala. 403, 47 So. 147; Wiebener v. Peoples, 44 Okl. 32, 142 P. 1036; Steltz v. Armory Co., United, 15 Idaho 551, 99 P. 98, 20 L.R.A., N.S., 872.
It is the general rule of law that implied warranties as to quality or condition do not apply to realty. Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818. If the item in question be realty, then there is no implied warranty applicable thereto. If the item be personalty, then the provisions of the statute as to implied warranties is made applicable and this is what the lower court held in finding that the sellers (defendants) breached their implied warranty as to the property in question. A "fixture" is defined in 36 C.J.S. Fixtures § 1, Definition and Nature and Requisites of Conversion into Realty in General, p. 890, as follows:
The rule is applied whether the house is new and unoccupied or had been used by others before plaintiff purchased. In addition to the New York cases cited in the text, the following cases support that rule: Druid Homes Inc.Cooper, 272 Ala. 415 AllenReichert, 73 Ariz. 91 WaltonPetty, 107 Ga. App. 753 CoutrakonAdams, 39 Ill. App.2d 290 WecksupraTudorHeugel, 132 Ind. App. 579 Jose-BalzsupraRappichAltermatt, 106 Ohio App. 282 VanderschriersupraSteiberPalumbo, 219 Or. 479 CaldwellWells, 228 Or. 389 Alabama v. Arizona v. Georgia v. Illinois v. (which distinguished case ) Indiana v. (which made no reference to case, ) Ohio v. (which distinguished case, ) Oregon v. , but see v. . As noted above, Colorado, Louisiana and possibly Texas hold that an implied warranty arises even though the house has been completed at time of contract. Generally on the question see Dunham, Vendor's Obligation as to Fitness of Land for a Particular Purpose, 37 Minn. L. Rev. 108; Bearman, Caveat Emptor in Sales of Realty — Recent Assaults Upon the Rule, 14 Vand. L. Rev. 541; Selker, Right of Purchaser in Sale of Defective House, 4 Western Res. L. Rev. 357; Notes:
The courts have also refused to hold a vendor liable on the theory that he impliedly warranted the premises to be in a safe condition, because there are no implied warranties of safety in sales of real estate, even though the vendor be the builder of the house where the defective condition exists. Otto v. Bolton Norris, 2 K.B. 46, 1 All Eng. 960; Kilmer v. White, 254 N.Y. 64, 171 N.E. 908 ( Ct. App. 1930); Combow v. Kansas City Ground Investment Co., above; Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818 ( Sup. Ct. 1951); Berger v. Burkoff, 200 Md. 561, 92 A.2d 376 ( Ct. App. 1952); see 2 Harper and James, above, at pages 1518 and 1520; Levy v. C. Young Construction Co., Inc., 46 N.J. Super. 293, 296-297 ( App. Div. 1957), and authorities cited, affirmed 26 N.J. 330 (1958). There are some exceptions to the general rule just discussed.
Neither fraud nor concealment is present here. The cases of Berger v. Burkoff, 200 Md. 561, 92 A.2d 376 ( Ct. App. 1952); Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818 ( Sup. Ct. 1951); Combow v. Kansas City Ground Investment Co., 358 Mo. 934, 218 S.W.2d 539, 8 A.L.R.2d 213 ( Sup. Ct. 1949); Otto v. Bolton Norris, 2 K.B. 46, 1 All Eng. 960 (1936); and the cases collected in 8 A.L.R.2d 218 (1949), support defendant's contention. The authorities cited by plaintiffs to avoid the established doctrine fall into two groups.