Goldmann, Waesche and Knight. The opinion of the court was delivered by Knight, J.s.c. (temporarily assigned). Waesche, J.s.c. (temporarily assigned) (dissenting).
[46 NJSuper Page 294] Defendant appeals from a county district court judgment entered in plaintiffs' favor in an action brought to recover the costs they incurred in replacing a sewer line connecting the dwelling they had purchased from defendant to the main
sewer line in the street. The action was tried by a judge sitting without a jury. He filed no opinion. The matter comes before us on a statement of evidence and proceedings, R.R. 1:6-3.
In June 1952 plaintiffs purchased a newly constructed house from defendant builder. The house sewerage system was connected to the municipal sewer line by a pipe located between six and eight feet below ground level, running from the house to the street a distance of about 62 feet. This line had been installed by defendant prior to plaintiffs' acquisition of title.
About a year after the purchase plaintiffs encountered difficulty from water backing into the cellar. They called a plumber who inserted a snake into the sewer line and removed an obstruction. No further difficulty was encountered until about a year later, when a similar condition was again remedied by the use of an electric rooter. In April 1955, almost three years after the original purchase, there again was water in the cellar. Thereupon the same plumber excavated at a point where the house sewer pipe connected with the main sewer line in the street, and discovered that a six-foot section of the house line was buckled and broken. He proceeded to insert a temporary six-foot section, and for a period of two months there was no trouble with the line. Thereafter, upon his recommendation, plaintiffs replaced the entire sewer line between the house and the street. They then sued for their expenses and obtained a judgment of $649.99 and costs. This appeal followed.
In their complaint plaintiffs alleged that in constructing the house defendant "was under a duty" to see that it was built "in a good and workmanlike manner with suitable materials"; that the sewer pipes "were not properly laid, as a result of which they were broken," making the sewerage disposal system ineffective; and as a result they were forced to replace the pipes and soil cover.
To recover in tort, plaintiffs would have to show that defendant inflicted personal injury or property damage upon them. The statement of evidence and proceedings
discloses no fact establishing negligence, so that plaintiffs have failed to prove an actionable tort claim. Anything defendant did occurred while it was the owner of the premises, and not after plaintiffs took title.
To prevail, the burden was on plaintiffs to establish a duty owed them by defendant and which it had breached. Such a duty would have to grow out of an express or an implied warranty. Although the contract and deed were not introduced in evidence, counsel agreed at oral argument to make them available to the court, in the exercise of its original jurisdiction, R.R. 1:5-4(a), so that there might be a complete determination of the cause on review. There is nothing in either the contract of purchase or in the deed which spells out an agreement by defendant to sell plaintiffs a well constructed house. There is no warranty of construction.
Ultimately, then, plaintiffs must justify a recovery on the basis of an implied warranty. Defendant contends that the acceptance of a deed by the purchaser from the vendor terminates the contractual relationship between the parties, and their respective rights and liabilities are thereafter determined solely by the deed and not by the contract of sale. This argument fairly summarizes prevailing law throughout the country. Campbell v. Heller , 36 N.J. Super. 361 (Ch. Div. 1955); Dieckman v. Walser , 114 N.J. Eq. 382 (E. & A. 1933); 2 Restatement, Contracts , § 413, p. 778 (1932); 4 Williston, Contracts (rev. ed. 1936), § 926, p. 2602; 55 Am. Jur., Vendor and Purchaser , § 368, p. 795 (1946); 38 A.L.R. 2 d 1310 (1954); 8 A.L.R. 2 d 218 (1949). Although the doctrine of caveat emptor , so far as personal property is concerned, is very nearly abolished, it still remains as a viable doctrine in full force in the law of real estate. Absent any covenant binding defendant to sell a well constructed house, plaintiffs cannot sue on an implied warranty. Williston, supra. That the rule of caveat emptor applies, and that there are no implied warranties in the sale of real estate, has been criticized, especially when applied to the sale of new housing, " Vendor's Obligation
as to Fitness of Land for a Particular Purpose ," 77 Minn. L. Rev. 108 (1953); and see " Right of Purchaser in Sale of Defective House ," ...