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Price v. B. Construction Co.

Decided: December 21, 1962.

GEORGE PRICE AND MINNIE PRICE, PLAINTIFFS-RESPONDENTS,
v.
B. CONSTRUCTION CO., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

A jury in the Superior Court, Law Division, awarded plaintiff buyers $2561.18 as damages for the breach by defendant seller of a warranty that the cellar in the new home being sold would be free from water for a period of one year from the date of closing title. Defendant appeals from the judgment based on that verdict.

The agreement of sale was executed on December 15, 1958, covered a new home being erected at No. 24 Wesley Court, South Orange, New Jersey, and provided for a purchase price of $43,000. In a printed portion of the contract there was this provision:

"This contract is entered into upon the knowledge of the parties as to the land and whatever buildings are upon the same, and not on any representations made as to character or quality."

However, on typewritten addenda it was provided:

"The seller agrees to complete the house in all respects * * *."

Also, there was typewritten the following warranty upon which plaintiffs based their action:

"The seller warrants and represents that for a period of one year from the date of closing of title, it will guarantee that the roof will not leak, that the cellar will be free from water, and that the heating system will be in good working order, provided the purchaser takes proper care of said heating system. This shall survive the giving of the deed."

Defendant does not contest the jury's finding that there was a breach of the warranty as to the cellar's being free from water within the one-year period. Indeed, there was ample evidence that there were large accumulations of water in the cellar on numerous occasions within the one-year period following the closing of title on February 11, 1959; that defendant was notified thereof many times by plaintiffs and their attorney and promised to correct the situation but failed to do so; and that when the year was up, more particularly on April 1, 1960, defendant disclaimed liability and attributed the water conditions to physical alterations of the property by plaintiffs.

It cost plaintiffs $2561.18 to cure the water condition in the cellar. This included $2111.18 for a new drainage system, $200 for surveying and engineering fees, and $250 for re-sodding and top-soiling. There was testimony that the new drainage system would be good for the life of the building, or at least 50 years. Plaintiffs' witnesses established that the work done was necessary and the charges therefor were reasonable. The cause of the water condition was attributed to defendant's failure to provide outlets for the footing drains. Defendant offered no proof that an adequate remedy could have been effected in a more economical way, or that the cost of the work actually done was not reasonable.

The limited contention made by defendant on this appeal is that the trial court committed reversible ...


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