351 So. 2d 598 | Ala. Civ. App. | 1977
Plaintiffs brought action for breach of contract for failure to construct a house in a good and workman-like manner and for breach of an express warranty. Judgment was for plaintiff. Defendants appeal. We affirm.
The evidence was that plaintiffs purchased a newly constructed home from defendants in July 1973. Defendants admit in their answer that there was an express warranty covering defects in the home for one year.1 After purchasing and moving into the house, plaintiffs assert that many defects appeared, such as water leaking into the basement, leaking plumbing, warped doors, mildewed walls and leaks in the roof. Cost of repairing the 16 defects noted was estimated to be over $2,000. Judgment was granted for $1,428.16.
Defendant's first issue on appeal is that the sale was controlled by the principle of caveat emptor. We fail to see how that principle is applicable in this case. This action, so far as we can determine, was not brought upon an implied warranty of fitness, *599
but upon breach of contract and an express warranty.2
Defendants cite the recent case of Cashion v. Ahmodi,
Defendant next contends that by moving in, accepting the house and signing a statement that no defects were noted, plaintiff waived defective performance. That is not the law. Mere acceptance and occupation alone does not constitute a waiver. Aubrey v. Helton,
Contrary to the contention of defendants in their last issue presented, the evidence is more than sufficient to support the judgment. The judgment must stand.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.