96 So. 162 | Miss. | 1923
delivered the opinion of the court.
The appellee sold to appellant a house and lot situated on Central street, in the city of Jackson, Miss. The appellee had purchased this lot when there were no improvements thereon, and had caused to be erected the house which he sold to appellant. Central street runs east and west, and this lot is on the north side thereof, and has a
Appellee sold the house and lot to appellant through a real estate agent, but he was present when appellant examined the premises. Appellant saw the uncovered portion of the ditch, but made no( inquiry in regard to its course, presuming that its course continued to the west of the bouse. Neither the appellee nor his agent disclosed the fact that the ditch ran under the house. In constructing the house, appellee placed certain foundation pillars directly over this covered ditch, and he did not disclose this fact to appellant. Several witnesses testified that' the
Some time after the appellant purchased the property the covering over the ditch gave way, wrecking the foundation of the house, and otherwise damaging it. The appellant was forced to expend the sum of four hundred twenty-five dollars in placing a concrete culvert in the ditch and in repairing the house, and to recover the sum so expended this suit was brought. At the conclusion of the appellant’s testimony a motion was made to exclude this testimony and grant a peremptory instruction for the defendant. This motion was sustained, and on appeal the sole question presented for decision is whether this ruling of the trial court was correct.
The solution of this question involves a consideration of whether, under the facts in evidence, the court was authorized to hold the defect which caused the injury and loss was a patent one; that is to say, one which appellant might have discovered by the exercise of ordinary diligence. It is conceded that appellant was aware of the presence of the open ditch on the rear of the premises, and that appellee made no representations whatever in regard to the course of the ditch or the foundation of the house, and the appellee was under no duty to disclose any fact that an inspection of the premises conducted with reasonable and ordinary diligence would have disclosed.
The appellee had covered the ditch, using as a base for this covering old and defective lumber, and afterwards had constructed the house Avith the foundation pillars resting on this insecure base, which he necessarily knew Avould give way in course of time. For a long distance north of the covered portion of the ditch its course was straight, and there was nothing in the appearance of the premises to indicate that its course changed beyond the point where the covering began, and certainly nothing to indicate that the foundation pillars of the house rested on an insecure covering placed over this ditch. The damage which appellant suffered was not caused by the mere fact that the
Reversed and remanded.