Smoot v. Hyde

855 S.W.2d 399, 1993 Mo. App. LEXIS 725, 1993 WL 156137
CourtMissouri Court of Appeals
DecidedMay 17, 1993
DocketNo. 18376
StatusPublished
Cited by4 cases

This text of 855 S.W.2d 399 (Smoot v. Hyde) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smoot v. Hyde, 855 S.W.2d 399, 1993 Mo. App. LEXIS 725, 1993 WL 156137 (Mo. Ct. App. 1993).

Opinion

PARRISH, Chief Judge.

John Hyde and Julia Hyde (defendants) appeal from a judgment entered against them in an action brought by Jerry Smoot and Patsy Smoot (plaintiffs) for breach of an express warranty related to the condition of the heating system in a house defendants sold to plaintiffs. Plaintiffs’ action for breach of express warranty was Count I of a two-count petition. Count II was an action for misrepresentation. The trial court dismissed Count II at the close of plaintiffs’ evidence. This court reverses as to Count I and affirms as to Count II.

Plaintiffs purchased certain real estate from defendants. The real estate included a residence. The residence was heated by “[a] wood furnace with an electric backup.” The real estate contract that plaintiffs entered into with defendants contained an addendum that stated:

In addition to the provisions of the contract and Standard Contract Provisions, the parties agree to the following:
1. Seller shall warrant that all electrical-mechanical systems, appliances and fixtures are in proper working order at the time of closing.
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The contract also provided that plaintiffs had “the right to obtain a written inspection report” to determine whether there were “material defects not readily apparent to [plaintiffs].” The inspection was to be performed at plaintiffs’ expense “by independent qualified inspectors.” Any “latent material defects not acceptable to [plaintiffs]” were required to be reported, in writing, to defendants or their agent “including a copy of the inspection report” within 10 weekdays (excluding holidays) after “acceptance” of the contract by plaintiffs. The terms of the contract further stated, “If [plaintiffs do] not report any requirements within the 10 working day period, [plaintiffs] shall be deemed to have accepted the property in its condition on the date of contract and [defendants] shall deliver possession of the property on the possession date in substantially the same condition as on the contract date.” 1

Plaintiffs did not have the residence inspected before the sale closed. In October — the sale closed in July — plaintiffs had the heating system inspected. The person who performed the inspection for plaintiffs was in the business of selling, installing and servicing heating and air conditioning equipment. He testified, over the objection of defendants,2 that he did not think the heating system was in proper working order. The witness’ complaints included:

The type of wood furnace that that was, for one. Most appliances are — are manufactured and have testing organizations within the associations. Or the— The manufacturers do have people, such as Underwriters Laboratory, that sets standards that these appliances are made [401]*401to. These are tested to promote safety, health and welfare of the public and the people buying these appliances. This furnace in question, I have — An insurance adjuster could render an opinion on it as far as the safety of it. But I don’t recognize that wood furnace as being a safe product.

The witness proposed “a replacement for a heating and air conditioning system.” He estimated a replacement cost of $4,800.

Defendants testified that the heating and air conditioning system that was in the house they sold to plaintiffs was bought from a Mr. Stephens and Mr. Gray. Defendant John Hyde explained that the system had not been altered or changed since it was installed, stating, “I don’t know anything about that kind of stuff. I accepted their work as what I paid for.” Mr. Hyde was asked the following questions and gave the following answers regarding the operation of the heating system:

Q. And in the wintertime when you started a fire in the — in the furnace, did it work?
A. Yes, it did.
Q. Did it always work?
A. Yes.
Q. When you turned the thermostat up, did it get hotter?
A. Yes.
Q. And when you turned it down, did it get lower?
A. Yes.

The wood furnace that was part of the heating system was manufactured locally by Reggie Gray. Mr. Gray has made furnaces “for at least 30 years,” although that is not his usual business. In his opinion the furnace was installed properly and was safe. He disagreed with plaintiffs’ witness who had inspected the system and questioned its safety. When asked why he did not agree with the other witness’ assessment, Mr. Gray explained, “Well, all the furnaces I’ve built, I’ve never knowed ... of one of them catching anything afire.” He concluded that the furnaces had not caught anything on fire because “they’re safe.”

Mr. Gray explained the relationship of the wood furnace to the electric furnace that was part of the heating system:

When we was setting the [wood] furnace up and he had the duct work already in and stuff, said he had his electrical furnace, and he was going to turn the blower through the wood furnace, see, and use the one blower for both.

Mr. Gray testified further:

Q. Is that a proper way to install one of your furnaces to make it work right?
A. Well, I — I have mine hooked up with an air conditioner and wood, but I don’t have no backup heat. And it — one blower works off of that.
Q. So, you’re — What you’re saying is that putting that blower in the way he did was — works in your house, too; doesn’t it?
A. Yeah.
Q. And—
A. I’d say that. Yeah.

Mr. Hyde testified that he used the heating system in the wintertime while defendants lived in the house they sold to plaintiffs. He testified that he started fires in the wood furnace; that it always worked. He was asked the following question and gave the following answer:

Q. Mr. Hyde, is it your testimony that the — that the wood unit was integrated into the electrical system so that the thermostat controlled all the units?
A. When Mr. Stephens completed the job, he showed me what he had done. He took me upstairs. He acquainted me with the thermostat. He showed me how to build a fire in the thing. He acquainted me with the blower system. And for two years, that’s exactly the way I did the house. I don’t know any other way than the way he showed me to do it.

The trial court heard this case without a jury. It is, therefore, reviewable as specified by Rule 73.01(c). As such, this court’s review is limited to determining whether there is substantial evidence to support the judgment, whether the judgment is against the weight of the evidence or whether it is the result of an erroneous [402]*402declaration or application of the law. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990).

Defendants present two points on appeal. Point I asserts that the trial court erred in awarding a money judgment for plaintiffs for the reason that there was no evidence presented from which damages could be determined.

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Cite This Page — Counsel Stack

Bluebook (online)
855 S.W.2d 399, 1993 Mo. App. LEXIS 725, 1993 WL 156137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smoot-v-hyde-moctapp-1993.