Christie v. Powell

190 S.E.2d 367 (1972)

15 N.C. App. 508

George C. and Susan M. CHRISTIE v. Albert H. POWELL.

No. 7214SC358.

Court of Appeals of North Carolina.

August 2, 1972.

Certiorari Denied September 14, 1972.

*368 Powe, Porter & Alphin by James G. Billings, Durham, for plaintiff-appellants.

Newsom, Graham, Strayhorn, Hedrick & Murray by James L. Newsom, Durham, for defendant-appellee.

Certiorari Denied by Supreme Court September 14, 1972.

BROCK, Judge.

First, plaintiffs assign as error that the trial court ruled as a matter of law that defendant was under no duty to reveal such knowledge as he did have to the plaintiffs, and had no knowledge of sufficient circumstances to put him on notice of the existence of a potentially dangerous condition in the foundation wall.

The plaintiffs' assignments of error nos. 2 and 3 are based on the following finding by the trial judge:

"The burden of proof being on the Plaintiffs, the Court is not satisfied by the greater weight of the evidence either that a condition existed in respect to the wall at the time of the sale which the Defendant would have been under a duty to reveal, or that Defendant had knowledge of circumstances sufficient to put him on notice of the existence of a potentially dangerous condition and under a duty to reveal such knowledge to a potential buyer, and the Court does not find that there has been a wilful concealment of any material fact such as to constitute fraud in this transaction."

Although the above finding is couched in negative language, it is nevertheless a finding by the trier of the facts that plaintiffs have failed to carry their burden of proof in that they have failed to satisfy him by the greater weight of the evidence that the facts are as they contend.

*369 In assignment of error number 4, the plaintiffs excepted to the trial court's finding and conclusion that defendant had not fraudulently concealed any material fact known or which he should have reasonably known at the time of the sale, and that plaintiffs had not established that they had been damaged as a proximate result of fraudulent concealment by defendant. Again, the plaintiffs contend that this finding and conclusion was error in that the trial court made its holding as a matter of law. We do not agree. This also is a holding, by the trier of facts, that the plaintiffs have failed to carry their burden of proof on the ultimate issue. The above assignments of error are overruled.

Secondly, the plaintiffs assign as error that the trial court ruled as a matter of law that they were under a duty to make further inquiry as to the condition of the basement walls.

Plaintiffs' assignment of error number 1 is taken to the following finding by the trial court:

"The condition existing as of August 1, 1967, was observable to Plaintiffs by any reasonable inspection of the basement walls and sufficient to put them on notice to make any inquiry a prudent purchaser of a house of this age should make."

The above finding is one of ultimate fact and is not a ruling as a matter of law as plaintiffs contend. This assignment of error is without merit and is overruled.

We note plaintiffs do not contend that any of the challenged findings were not supported by competent evidence, nor have they brought forward in the record on appeal any evidence presented before the trial judge. When the evidence is not contained in the record on appeal it will be presumed that there was sufficient evidence to support the findings of fact. 1 Strong, N.C. Index 2d, Appeal and Error, § 42, p. 185.

No error.

MORRIS and HEDRICK, JJ., concur.