266 A.2d 200 | Conn. Super. Ct. | 1970
The complaint sets out that in March, 1967, the parties to this action entered into a contract in which it was agreed that for a sum certain, which the plaintiffs agreed to and did pay, the defendant builder-vendor would construct, in accordance with plans and specifications, and turn over to the plaintiffs, a house on Trescott Hill Road in North Canaan. The defendant, it is alleged, directed and completed the construction, furnishing all materials and labor. Certain representations were made by him and relied on by the plaintiffs, according to their allegations, including the representation that he was capable and qualified to undertake and complete the construction. It is further alleged that the fireplace built in the house was used on November 6, 1967, and that night what might be termed an unfriendly fire occurred in the wall immediately to the rear of the fireplace and spread to and destroyed or damaged other walls, ceilings and floors of the house, causing extensive damage thereto. The plaintiffs seek money damages for the loss occasioned by the fire, which is claimed by them to have resulted from several described failures, improprieties and insufficiencies in the construction of the house by the defendant.
The instant demurrer attacks the sufficiency of the second count of the complaint to state a cause of action. That count sounds in breach of implied warranty and is to the effect that the construction by the defendant was to have been, but failed to be, in *478 good workmanlike manner and suitable for the purpose for which it was intended, namely, a place of residence for the plaintiffs. The defendant's claimed ground of demurrer is that "the law does not impose an implied warranty on the construction of a building as alleged in the complaint." With this position this court is not in accord.
Only for the reason that caveat emptor and the Uniform Commercial Code have been referred to in the briefs or in oral argument on this demurrer are comments as to both included.
The sustaining of the defendant's demurrer would be tantamount to the effective operation of the rule of caveat emptor. Indeed, it would be a harsh result were the purchaser of a new home rendered powerless by the summary denial to him of the right to seek damages where, for instance, defects occurred in the building of his home which were not visible to the eye before he took possession. Included in such defects and as examples might be a roof not properly installed, or one affording poor and insufficient protection from the elements, or a foundation which gave way to the weight of the structure thereon shortly after the owner took possession, or the use of insufficient supporting timbers for an upper floor, so that a visible sagging thereof beyond normal tolerances resulted. The construction of a chimney with combustible material as a lining or with improper openings also might be an example of a defect not readily visible before the stack was put to use. As a matter of fact, kindred latent defects too numerous to enumerate might show themselves soon after delivery of a new structure. Fairness and reason dictate that there should be access to judicial determination, if need be, as to the correction of such defects, or adjustment because of them, without vulnerability to defeat by the rule *479
of caveat emptor. It has been held that one who constructs a building impliedly warrants that the building shall be erected in a workmanlike manner and in accordance with good usage and the accepted practices in the community in which the construction and work are done. Mann v. Clowser,
The rule of caveat emptor had its origin during the sixteenth century in the then chancy conditions of English trade operations as they dealt with chattels and personalty. Subsequently, the rule became an integral part of our own business dealings. Hamilton, "The Ancient Maxim Caveat Emptor," 40 Yale L.J. 1133, 1164, 1178-80 (1931). Basically, such a doctrine applies to a sale and transfer when the purchaser has had the opportunity of investigating and inspecting what he is dealing for and buying, and when his observations would disclose defects which are material. Sperry Rand Corporation v.Industrial Supply Corporation,
In the acceptance by the purchaser-owner of defective performance under a contract for construction of a house, there arises no legal presumption that such acceptance discharges any right of damages for those defects unless a length of time unreasonable under all of the circumstances elapses without complaint. 5 Williston, Contracts (3d Ed.) § 724. The question is one of fact. It is generally held that the mere fact that a purchaser-owner of a building has taken possession thereof after its erection does not in itself constitute an acceptance of the workmanship of the contractor-builder in each respect.Mitchell v. Carlson,
Whether we consider implied warranties to be the opposites of or "exceptions to . . . the maxim `caveat emptor,'" the fact remains that there has been and is a continued and increasing tendency on the part of our courts to broaden and extend the area of activity of implied warranties. 46 Am. Jur. 520, Sales, § 337. Our Supreme Court employed in a general way the rationale of implied warranty even in much earlier days. Bailey v. Nickols, 2 Root 407 (1796); Lessler, "Implied Warranty of Quality in Sales of Food," 14 Conn. B.J. 47, 53 (1940).
"The law is clear that a contract includes not only what is expressly stated therein but also what is necessarily implied from the language used. Rockwell
v. New Departure Mfg. Co.,
It may be stated that the law of express and implied warranty is a part of and is distinguished in the Uniform Commercial Code. General Statutes §§
Exceptions to the rule of caveat emptor exist as it applies to the sale of real estate; they arise through the concept of negligence. Dow v. Holly Mfg. Co.,
The principle of caveat emptor as applied to sales of realty has suffered further by the application of the force of effective warranty. It has been held that an implied warranty to construct in a workmanlike manner would be applicable where the purchaser-owner contracted with the vendor-builder to build a dwelling house. Perry v. Sharon DevelopmentCo., [1937] 4 All E.R. 390. It has been said: "The doctrine expressed in Perry reflected the general custom of the time whereby the prospective purchaser would buy a plot of land and subsequently he would contract with a builder to construct the house. The construction contract contained a promise, either express or implied, to build the house in a workmanlike manner according to specifications. Thus, the homebuyer was afforded protection against poor quality construction. The rule inPerry was adopted by most jurisdictions in this country." Caldwell, "An Implied Warranty of Fitness *483
and Suitability," 6 Houston L. Rev. 176, 179 (1968). For additional acknowledgment of the need of protection for the buyer against faulty and defective construction, see Waggoner v. Midwestern Development,Inc.,
A case on facts similar to those in the cause with which we are concerned was decided adversely to the defendant on this question of implied warranty, and also there was included the elimination of the doctrine of caveat emptor. Humber v. Morton,
It has been held in our state, also, that there exists warranty by implication as to the furnishing of labor, material and workmanship in construction connected with real property. Premco Drilling, Inc. v. Maillet Bros. Builders, Inc., 3 Conn. Cir. Ct. 519, 523 (1965); Duffy v. Woodcrest Builders, Inc., 2 Conn. Cir. Ct. 137, 141 (1963). The court refused to sanction delivery with absolution for the need of performance in a workmanlike manner in Fellenbaum v. Markowski, 4 Conn. Cir. Ct. 363, 366 (1967).
There is here more involved than, as urged by the defendant in oral argument, a contract for services. Included were material, labor and responsibility for the total construction and the finished product; it was no simple hourly or daily repairs contract under *484
control and direction of the plaintiffs. See Hoye v.Century Builders, Inc.,
It is not here incumbent upon this court to decide the issues of the case. Now, it is but the province of this court to pass upon the sufficiency of the second count to state a cause of action. To approve of the defendant's contention as advanced in his demurrer would result in a summary dismissal of the opportunity which this court, for the reasons herein set out, believes that these plaintiffs should have to offer proof in support of the implied warranty which they claim.
The instant demurrer is overruled.