Morski v. Cedarcrest Homes, Inc.

Ohio Court of Appeals

Morski v. Cedarcrest Homes, Inc.

218 N.E.2d 640, 7 Ohio App. 2d 45, 36 Ohio Op. 2d 123, 1966 Ohio App. LEXIS 413

CourtOhio Court of Appeals

DecidedJuly 12, 1966

Docket8031

StatusPublished

This text of 218 N.E.2d 640 (Morski v. Cedarcrest Homes, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Morski v. Cedarcrest Homes, Inc., 218 N.E.2d 640, 7 Ohio App. 2d 45, 36 Ohio Op. 2d 123, 1966 Ohio App. LEXIS 413 (Ohio Ct. App. 1966).

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Opinion

Duffy, J.

(Presiding). Tbe plaintiffs, appellants herein, purchased a home from tbe defendant, appellee herein, wbicb was building and erecting bouses. Several months after tbe sale was completed and tbe plaintiffs bad moved into tbe property, 'they discovered that their driveway encroached on tbe adjacent -property two feet, three inches at tbe street, and one foot, eight inches near tbe rear of tbe bouse. Tbe plaintiffs brought suit 'in the Municipal Court of Columbus for damages because of tbe ¡misplaced driveway. The trial judge found that tbe driveway ¡did encroach on the adjacent property, but' that tbe plaintiffs “failed to show by a single word of testimony that tbe defendant-vendor or any person acting for it represented by word, conduct, document, map, drawing, or otherwise that said drive,way was within tbe boundary of tbe property.” Tbe court relied on tbe cases of Leppert v. Bosserman, 21 Ohio App. 366, and Mulvey v. King, 39 Ohio St. 491.

While-the trial court found that tbe record was silent as* to any representations by tbe defendant, tbe transcript of testimony does indicate that tibe pegs for the outline of tbe driveway were in place when tbe plaintiffs examined tbe property,, that tbe contract of sale did provide for a paved driveway, and! that tbe ¿defendant corporation did own tbe adjoining property] *46 and was in the business of building and selling houses. There -was also evidence that the defendant had had the property surveyed prior to the commencement of the building.

We are of the opinion that where a builder owns adjoining properties and sells a house and driveway, the location of which is apparent to the purchaser, it is a sufficient representation that the house and driveway are on the lot sold by the builder. The finding of the trial court that the record was silent as to any representations by the defendant is in error. The judgment of the trial court will be, and hereby is, reversed and the cause remanded to the trial court for further consideration in line with this opinion.

Judgment reversed cmd cause remanded.

Duppey and Troop, JJ., concur.

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Duffy, J.

(Presiding). Tbe plaintiffs, appellants herein, purchased a home from tbe defendant, appellee herein, wbicb was building and erecting bouses. Several months after tbe sale was completed and tbe plaintiffs bad moved into tbe property, 'they discovered that their driveway encroached on tbe adjacent -property two feet, three inches at tbe street, and one foot, eight inches near tbe rear of tbe bouse. Tbe plaintiffs brought suit 'in the Municipal Court of Columbus for damages because of tbe ¡misplaced driveway. The trial judge found that tbe driveway ¡did encroach on the adjacent property, but' that tbe plaintiffs “failed to show by a single word of testimony that tbe defendant-vendor or any person acting for it represented by word, conduct, document, map, drawing, or otherwise that said drive,way was within tbe boundary of tbe property.” Tbe court relied on tbe cases of Leppert v. Bosserman, 21 Ohio App. 366, and Mulvey v. King, 39 Ohio St. 491.

While-the trial court found that tbe record was silent as* to any representations by tbe defendant, tbe transcript of testimony does indicate that tibe pegs for the outline of tbe driveway were in place when tbe plaintiffs examined tbe property,, that tbe contract of sale did provide for a paved driveway, and! that tbe ¿defendant corporation did own tbe adjoining property] *46 and was in the business of building and selling houses. There -was also evidence that the defendant had had the property surveyed prior to the commencement of the building.

We are of the opinion that where a builder owns adjoining properties and sells a house and driveway, the location of which is apparent to the purchaser, it is a sufficient representation that the house and driveway are on the lot sold by the builder. The finding of the trial court that the record was silent as to any representations by the defendant is in error. The judgment of the trial court will be, and hereby is, reversed and the cause remanded to the trial court for further consideration in line with this opinion.

Judgment reversed cmd cause remanded.

Duppey and Troop, JJ., concur.

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218 N.E.2d 640, 7 Ohio App. 2d 45, 36 Ohio Op. 2d 123, 1966 Ohio App. LEXIS 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morski-v-cedarcrest-homes-inc-ohioctapp-1966.

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