Opinion
No. 29852
Decided July 31, 1967.
Implied warranty of uncompleted structure — Not imposed on builder-vendor, when — Duty imposed on builder-vendor — Caveat emptor — Purchase and sale of completed structure.
1. An implied warranty in favor of the vendee of an uncompleted real property structure that it will, when finished, be suitable for the purpose intended, will not be imposed upon the vendor who constructed it and undertakes to complete it as a part of the executed contract for sale of the real estate.
2. A duty is imposed by law upon a builder-vendor of a real property structure to construct the same in a workmanlike manner and to employ such care and skill in the choice of materials and work as would be commensurate with the gravity of the risk involved in protecting the structure against faults and hazards.
3. In the absence of express warranties, caveat emptor controls the purchase and sale of a completed structure, and the vendor will not be strictly liable to a purchaser on an impied warranty that the structure is fit or suitable for the purpose ordinarily intended, even though the vendor was responsible for its construction.
Messrs. Chorpening Wilson, for plaintiffs.
Messrs. Troth VanTilburg, for defendants.
The evidence in this matter discloses that plaintiff agreed by contract in writing in the spring of 1962 to purchase a home from the defendant; that said home was then under construction by the defendant builder at the time of the signing of the contract; that later in the early summer of 1962 a deed to the premises was delivered to the plaintiff; and that the plaintiff paid the defendant builder in full for such dwelling house.
The evidence discloses further that in the summer of 1963 plaintiff noticed a peeling of paint in the kitchen ceiling, and hairline cracks in the kitchen ceiling, which items were drawn to the attention of the defendant builder.
The evidence discloses further that in the summer of 1964 substantial cracking of the plaster in various parts of the home developed, and that the defendant builder, after consultation with the plaintiff, agreed to make certain repairs, but that because of a dispute between the plaintiff and the defendant as to the extent of repairs, no repairs have been made to date.
Plaintiff's testimony discloses that after completion of the home the plaster throughout this house appeared to be in good shape, but that extensive cracking of plaster and peeling of paint commenced in 1963, approximately one year after completion of construction, and has continued in many rooms of the home to date. Plaintiff's testimony also establishes that defendant builder made an offer to patch the plaster at least on one occasion, but because of disagreement as to the extent of patching to be accomplished, plaintiff has refused to allow defendant builder to patch any of the plaster in the home.
Testimony of plaintiff's witnesses establishes that the reason for the cracking of the plaster throughout the house was caused, first, either because of a thermal change which occurred some short time after the house was plastered, or, second, because the plaster ingredient that was used by the plasterer did not contain the proper aggregate.
The evidence discloses further that in the opinion of the plaintiff, defendant builder used good workmanship and materials in constructing the home, and that the cracked plaster was the only difficulty which plaintiff has encountered with such construction.
The evidence discloses further that defendant builder employed an expert plasterer who has worked for many years plastering homes in the area. All the witnesses admitted the ability and proficiency of such plasterer.
The evidence discloses further that the cost of replastering those areas which now need to be plastered would amount approximately to the sum of $610; that the cost of repainting those areas which have to be repainted would amount to approximately $150, and that it would be necessary for plaintiff to leave the premises for a short period of time while the work was accomplished.
The major issue, then, in the cause at bar is whether, under all the circumstances set forth hereinabove, an implied warranty in favor of the purchaser of an uncompleted structure that would when finished be suitable for the purpose intended, should be imposed upon the builder seller who constructed and who undertook to complete it as a part of the executed contract for the purchase and sale of the real estate. This court is of the opinion that under the recent holding of the Ohio Supreme Court in the case of Mitchem v. Johnson, d. b. a. Wallace Johnson Co., 7 Ohio St.2d 66, 218 N.E.2d 594, the plaintiff cannot recover from the defendant for the following reasons:
1. It is the duty of a builder of a structure to perform his work in a workmanlike manner, that is, the work should be done as a skilled workman should do it and the law exacts from a builder, ordinary care and skill only. From the evidence presented in this cause, this court specifically finds that the construction of the home now owned by plaintiff was done in a workmanlike manner.
2. A builder is not an insurer and is not required to respond to an owner on account of defective construction, except in accordance with the precepts of ordinary care, unless a specific obligation is affixed on him through a specific contract to do so. In this case there was no such contract requiring defendant builder to repair the plaster which should fail because of latent defects in the plaster material not discoverable through exercising ordinary care. There is no absolute warranty implied by law against the builder, for the measure of his duty is to be ascertained by reference to the standard of ordinary care and skill in the circumstances which beset the particular situation. In the absence of express warranties, the overwhelming weight of authority in this country, which the court has completely and thoroughly studied, is that the doctrine of "let the buyer beware" controls the purchase and sale of a completed structure, and the vendor builder will not be strictly liable to the vendee purchaser on an implied warranty that the structure is fit or suitable for the purpose ordinarily intended, even though the vendor was responsible for its construction.
This court cannot hold, on the state of the evidence as presented, that this home was not constructed in a workmanlike manner. The court would be speculating to hold that the plaster cracked either because of a thermal change within and under the control of the builder, or because of the lack of aggregate in the plaster ingredient. There may have been other reasons that the plaster failed as admitted by the expert testimony presented by the plaintiff in this case. A breach of good workmanship is not inferred by the defective plaster condition. Plaintiff has the burden of proof that there was a failure to exercise ordinary care and skill. This court finds that the plaintiff has failed to meet such burden of proof. Therefore, the court has no alternative but to find in favor of the defendant builder.
Judgment accordingly.