96 Pa. Super. 574 | Pa. Super. Ct. | 1929
Argued April 24, 1929. Beatty, a builder, agreed to convey to the plaintiff a lot of ground on which a foundation had been partly laid, and to erect a house "identical in construction, etc., to the one erected on the adjacent lot." The house in due time was completed, and in appearance and size appeared to be like the one on the next lot, but the plaintiff contended that the house was not built in a workman-like manner in that an old stump was left in the ground and the foundation built over it. As a result, the house settled, the walls cracked, and the plaintiff maintained that his property was damaged. The jury so found.
The defendant takes the position that as the deed was accepted without reservation or exception that there was a merger of all the covenants in the agreement so that it cannot be the basis of an action. We concede that the general rule is that a deed includes all prior negotiations and agreements leading up to the execution of the deed: Harbold v. Kuster,
The case of Stewart v. Trimble,
In Bricker v. Kline,
The alleged breach was not that of the contract to convey, but of the covenant to complete the construction of the house in a workman-like manner. The acceptance of the deed did not relate to the legal duty of the defendant to complete the construction of the house and did not debar this plaintiff from bringing his action for the failure of the defendant to comply with the terms of the agreement: Dick v. McWilliams,
The appellant further complains that the house had been inspected and accepted and settlement made under the contract, and therefore damages are not recoverable in the absence of fraud. The alleged defects in the construction were hidden and not discovered until after occupancy of the house by the plaintiffs. The testimony showed that a portion of the foundation had been built but the defect was under the wall, so that a reasonable inspection would not have revealed the imperfection in construction and workmanship; therefore, there was no waiver of the defects by the acceptance of the deed, even in the absence of fraud.
Bryant v. Stilwell,
As Judge PORTER in Stewart v. Trimble, supra, said, on page 518: "It is, however, further contended that the allegation of the use of bad material and workmanship in the plastering and drainage was not made until the defendant had been a number of weeks in possession, and that this delay estopped him from setting up the defects as a defense. The character of the defects was such as not to be visible. The defects did not appear immediately. They were of a serious and damaging character ...... the bad workmanship and material having been discovered before the balance was paid, it was within the right of the defendant to set up the failure to perform the alleged stipulation of the contract for completion. ...... But defects which were not manifest and had not developed their true character and importance when the due bill was given, were not waived as to their effect by the giving of the due bill."
Neither Miller and Sons Co. v. Homeopathic Hospital,
The questions of fact here were for the jury's determination and they were very clearly and fairly submitted by the learned trial judge.
It was further complained that evidence was not sufficient to sustain a verdict for damages in the sum *580 of twenty-one hundred and sixty-eight ($2,168) dollars, the amount of the verdict. Mr. Young testified that in his judgment the market value of the house in May, 1925, without any defects, was somewhere around ninety-three hundred ($9,300) dollars; and that the market value of the house as constructed was seven thousand ($7,000) dollars. There was some other testimony, but Young's testimony of itself was sufficient to support the verdict.
The granting of a new trial on the unsatisfactory evidence was a matter for the lower court. It has been held frequently that there will be no reversal, except where there is a manifest abuse of discretion. One of the most recent authorities on the point is Hardy v. Millers Mutual Fire Ins. Assn.,
Assignments of error are all overruled and judgment affirmed.