Saunders v. Martin

390 S.W.2d 513

• Court: Court of Appeals of Texas
• Decided: April 13, 1965
• Docket: 7648
• Status: Published

Opinions

FANNING, Justice.

A summary judgment case. Plaintiff-appellant Saunders brought suit on the alleged fraudulent actions of defendants-appellees in regard to the sale of a residence by defendant owner William B. Martin and sold by defendant Rosa McMillan as a real estate broker. Plaintiff sought judgment against appellees for the difference in the actual value of the house and the value as represented; and in the alternative sought to recover against defendants jointly and severally his cost in repairing the allegedly concealed defects and made other contentions.

Defendants’ motions for summary judgment were granted by the trial court. Plaintiff’s motion for new trial was overruled. Plaintiff has appealed.

Summary judgment proceedings do not seek to decide issues of fact, but to ascertain if any genuine issues of material fact exist. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, wr. ref., n. r. e. (1951); Lotspeich, et vir v. Chance Vought Aircraft, et al, Tex.Civ.App., 369 S.W.2d 705, wr. ref., n. r. e. (1963).

Saunders was shown a house owned by Martin on or about Oct. 15, 1958, and a few days subsequent thereto, by Mrs. Williamson, an agent of real estate broker McMillan. On Oct. 25, 1958, a contract was executed between Saunders and Martin for the purchase of said house for $37,000.00, with Saunders further agreeing to pay the broker McMillan, a commission of $1,500.-00. Martin and wife conveyed the property to Saunders by warranty deed on Nov. 3, 1958, and received the $37,000.00 agreed to be paid to them by the contract. Saunders paid broker McMillan the $1,500.00 commission.

Plaintiff claimed that defendant McMillan made certain oral representations in regard to the house that were false at the time they were made, known to be false by the party making them, and were relied upon by the plaintiff to his damage. This alleged reliance was based on the statement that “the house was built of fine materials and ‘A-l materials’ ”. Plaintiff further claimed that the fair market value of the house as represented was $38,500.00; however, since it was “not built of fine materials and A-l materials”, its value at the time of delivery was $34,500.00. Plaintiff further claimed and alleged that certain defects and flaws were discovered upon moving into the house and that they were either concealed or did not exist at the time of his inspection.

On April 4, 1959, the appellant-plaintiff, after making certain repairs and improvements to the property in an amount (or approximate amount) of $1,445.06, sold the property in question for $40,000.00.

Plaintiff’s oral deposition was taken. In it plaintiff stated to the effect that he looked at the house before he bought it, that he walked through the house twice with Mrs. Williamson (an agent of broker McMillan) and that he went into all of the rooms of the house. In answer to the question “Did Mrs. Williamson conceal anything from you at the time she showed you through the house”, plaintiff replied “Not to my knowledge”. Appellant further stated to the effect that he could not say that Mrs. Williamson had concealed any defects in the house from him and stated: “I imagine if she knew it was there, I think she would have told me about it. But I don’t think she knew the house was in that shape.” Appellant, in answer to the question, “Do you think she (Mrs. Williamson) intentionally concealed anything from you?”, replied, “I do not.” Neither defendant Martin, nor defendant McMillan showed the house to plaintiff Saunders — it was shown by Mrs. Williamson (agent of McMillan) and the house was looked at twice by Saunders, looking into all rooms, before Saunders signed the purchase contract.

We think it is a fair conclusion from appellant’s statements in his deposition and the record as a whole that, due to his actual investigation of the premises he was in as good a position as appellee McMillan and her agent Williamson to determine the quality of the materials and construction of the house.

Appellant’s claim against broker defendant McMillan is based on her statement that “the house was built of fine materials and A-l materials”. This statement was not made by the owner defendant Martin and plaintiff does not claim that Martin made such a statement. It is undisputed that appellee Martin made no representations whatsoever to appellant except those contained in the written contract.

It is clear from the undisputed record that the broker McMillan was not a general agent of defendant Martin authorized to make representations in behalf of Martin. In this connection see Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922 (1944), wherein it was held that ordinarily a real estate broker with whom a house is listed is only a special agent with limited authority to showing the property and finding a purchaser.

Unquestionably, defendant Martin under the undisputed record did not make any fraudulent representations, and any representations made by broker defendant McMillan as to the house being built of fine materials and A-l materials were not authorized (or known of) by Martin and were not within the scope of any authority delegated by Martin to McMillan.

We are also of the view that defendant McMillan’s statement that “the house was built of fine materials and A-l materials”, was more in the nature of puffing talk or dealer’s talk, and the expression of an opinion without there existing any element of bad faith on Mrs. McMillan’s part, since under the record it is clear that defendant McMillan and plaintiff Saunders were dealing at arms length and both had equal means of information and were equally qualified to judge the true facts. See the following authorities: Zucht v. Stewart Title Co., Tex.Civ.App., 207 S.W.2d 414, wr. dism. (1948); Harris v. Sanderson, Tex.Civ.App., 178 S.W.2d 315, writ refused (1944); Whitsel v. Hoover, Tex.Civ.App., 120 S.W.2d 930, wr. dism., (1938).

Also in this connection, see 25 Tex.Jur. 2d 47, wherein it is stated in part as follows:

“General commendations, commonly known as dealer’s talk, seller’s statements, or puffing, do not amount to actionable misrepresentations where the parties deal at arm’s length and have equal means of information and are equally well qualified to judge the true facts. Cope v. Pitzer (CA) 166 S.W. 447, err. dism’d; Patterson v. Bushong (CA) 196 S.W. 962, err. ref.; Tippit v. Stue Kert [Stuckert] (CA) 71 S.W.2d 914 [609], The law will not assist the purchaser who accepts exaggerated statements of value made by a vendor when he is in a position, as good as that of the vendor, to ascertain the truth of the assertions. Riley v. Treanor (CA) 25 S.W. 1054.”

It is our view that under the undisputed record the trial court correctly granted the motions for summary judgment. Appellant’s various contentions have been considered and are overruled.

The judgment of the trial court is affirmed.