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Polson v. Martin

Decided: April 17, 1962.


Appeal from the Circuit Court for Prince George's County; Bowie, J.

Brune, C. J., and Henderson, Horney, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.


This appeal is from a judgment n.o.v. entered after the jury returned a verdict in favor of the appellants (plaintiffs below). The suit arises out of the purchase by the appellants of a new home which had been completed and offered for sale by the appellees (defendants below), in an action in deceit based on allegations of misrepresentation, concealment, and fraudulent non-disclosure.

In passing upon motions for directed verdicts or judgments n.o.v., the evidence and all logical and reasonable inferences deducible therefrom must be considered in the light most favorable to the plaintiff. This principle is too well established to require the citation of authorities.

The evidence disclosed by the record shows that the appellee, William P. Martin, had been engaged in the occupation of developing and building homes in the Forest Heights area of Prince George's County for more than twelve years, and had been in the construction business prior to that time. In January 1955 the appellees purchased a building lot located at what became premises 291 Cree Drive, Forest Heights. At the time of purchase the topography of the lot was in a rough, natural state, composed of clay, sand, and gravel, with a ravine running through it that had been partially filled. The house was eventually built on filled dirt athwart the ravine.

The ravine contained a pipe which was apparent, but did not run through or onto the lot.

On August 16, 1956, Mr. Martin made application for a building permit to the building inspector's office in said county to build a house on the lot. The application and plans submitted therewith specified a design for the foundation or footings of the building to be twelve inches in depth and twenty-four inches in width. The minimum requirement in the county for residential construction was eight inches in depth and sixteen inches in width.

Some time thereafter the appellee, William P. Martin, began construction on the lot, digging footings to more than comply with the minimum county requirements, and provided, in addition thereto, three steel reinforced 5/8 inch rods every four feet in the concrete for the foundation. Prior to the construction of the footings he tested the soil in the customary way to determine the type of footings required. These footings, when poured, then were inspected by Mr. Ellis, an inspector from the building inspector's office, and approved by him. The footings, as Ellis recalled them in his testimony at the trial, met the minimum requirement of eight by sixteen, but according to other witnesses were at least twelve by twenty-four, or in places wider.

The house was completed about the 20th of December, 1956, and was put on the market for sale to the general public. It remained unsold for a period of approximately eight months when it was sold to the appellants. There had been no meeting or negotiations between the appellants and the appellees until June of 1957 when the appellant, Lonnie C. Polson, a brick contractor, in response to a "For Sale" sign, came upon the premises to inspect the house. From this time in June 1957 the appellants made frequent visits to and freely inspected the house and grounds without interference by the appellees prior to the execution of the contract on July 31, 1957. The appellants stated that they were satisfied with the house. During this period of negotiations the appellants demanded that the appellees guarantee the house, and that the contract contain a provision to that effect. This demand by the appellants was refused by the appellees. The appellants claimed

that the appellees stated that this would not be necessary because the house was built according to the Prince George's County Building Code. The appellants took possession of the property in September 1957 and thereafter in the Spring of 1958 began extensive improvements on the premises by adding a large garage and driveway. This activity necessitated the use of heavy building equipment, such as tractors, bulldozers, and loaders.

Subsequently, in February or March of 1958 the appellants began to notice some hairline cracks in the basement of the house. Up until this time the appellants had no complaints about the house. The cracks got progressively worse after a lapse of time. Expert witnesses who testified at the trial differed as to the cause of the cracks. The appellants' experts testified that the cracks in the house were due to settlement, while the appellees' expert testified that in his ...

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