Childress v. Nordman

Annotate this Case

78 S.E.2d 757 (1953)

238 N.C. 708

CHILDRESS et ux. v. NORDMAN et al.

No. 532.

Supreme Court of North Carolina.

December 2, 1953.

*759 Bell, Horn, Bradley & Gebhardt, Charlotte, for plaintiffs, appellees.

H. L. Strickland, Charlotte, for defendants Richard W. Nordman and Virginia P. Nordman, appellants.

Brock Barkley, Charlotte, for defendant Carolina Realty Co. of Charlotte, appellant.

ERVIN, Justice.

The chief question raised by the assignments of error is this: Did the trial judge err in refusing to dismiss the action upon a compulsory nonsuit after all the evidence on both sides was in?

This question must be answered in the affirmative. This is so simply because there was no evidence at the trial sufficient to show that the representation concerning the state of the dwelling was false either at the time it was made by Wyman or at the time it was acted on by the plaintiffs. Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131; Whitmire v. Heath, 155 N.C. 304, 71 S.E. 313; Cash Register Co. v. Townsend, 137 N.C. 652, 50 S.E. 306, 70 L.R.A. 349; Ramsey v. Wallace, 100 N.C. 75, 6 S.E. 638; Lunn v. Shermer, 93 N.C. 164; 37 C.J.S., Fraud, page 251, § 17.

An analysis of the testimony invoked by the plaintiffs on this phase of the case demonstrates the soundness of this conclusion.

*760 Wyman made the representation that the house was free from termites early in September, 1951, and the plaintiffs acted upon the representation on September 10, 1951, by contracting for the purchase of the property. They merely performed the obligations of their contract when they subsequently completed the payment of the purchase price and accepted the deed.

The plaintiffs did not attempt to prove the probable time of the entry of the termites into the dwelling by evidence of the habits or propensities of these insects in respect to forsaking old haunts and invading new ones. They undertook to establish this crucial date by calling the plaintiff Jack M. Childress and the termite eradicator William Ivey to the witness stand.

Childress deposed that this event occurred during the last week of October, 1951: "After the painting and tile work was completed, I had the floors refinished. I called in Mr. Simpson to do the work, and that was when I discovered about the termites. In one of the rooms there was a linoleum rug nailed down to the floor, and when the sanding man tore the rug up, he called me and said he thought I had termites. I went out there. From all indications, I would say it was termites. I told him to replace the floors that was needed and I would call some exterminating company to come out and inspect the house. He replaced the floorboards that needed to be replaced in that bedroom."

This testimony appears at first glance to be fraught with much evidential light. But when its vague generalities are reduced to their specific probative proportions, it leaves everything to uncertain conjecture except the naked fact that during the last week of October, 1951, Childress observed upon a bedroom floor in the dwelling indications of some termite damage whose character and extent he did not reveal. This interpretation of his evidence is corroborated by his own frank admission that he did not deem "the termite problem in the house" to be serious until sometime in December, 1951, when he "went underneath the house" and discovered other indications of termite injury.

Ivey gave this evidence in response to a hypothetical question put to him by counsel for the plaintiffs: "From my experience in that business (i. e., termite eradication), I would definitely say that in my opinion those termites were present in that building in the previous October. It would not necessarily take them that period of time to do the damage they had done. We have replaced sills, in some instances, where termites had eaten them out in three and a half months. But through our experience in the field, we can detect where it is rather new damage, or where it is an old damage; and in this particular case, it really indicated that it had been active and going on for quite some time."

When all is said, the testimony of Childress and Ivey merely shows the presence of termites in the dwelling during the last week of October, 1951. This being true, the case falls within the purview of the general rule that mere proof of the existence of a condition or state of facts at a given time does not raise an inference or presumption that the same condition or state of facts existed on a former occasion. Jarvis v. Vanderford, 116 N.C. 147, 21 S.E. 302; Liverpool & London & Globe Ins. Co. v. Nebraska Storage Warehouses, 8 Cir., 96 F.2d 30; Andresen v. Kaercher, 8 Cir., 38 F.2d 462; W. F. Corbin & Co. v. U. S., 6 Cir., 181 F. 296, 104 C.C.A. 278; Killoren Elec. Co. v. Hon, 211 Ark. 403, 200 S.W.2d 775; Eudora Motor Co. v. Womack, 195 Ark. 74, 111 S.W.2d 530; In re Dolbeer's Estate, 149 Cal. 227, 86 P. 695, 9 Ann.Cas. 795; Glenn v. Tankersley, 187 Ga. 129, 200 S.E. 709; Erskine v. Davis, 25 Ill. 251; Blank v. Township of Livonia, 79 Mich. 1, 44 N.W. 157; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21; Doran v. United States Bldg. & Loan Ass'n, 94 Mont. 73, 20 P.2d 835; Slone-Carter Grain Co. v. Jones, 56 N.M. 712, 248 P.2d 1065; Niehoff-Schultze Grocer Co. v. Gross, 205 App.Div. 67, 199 N.Y.S. 196, affirmed in 237 N.Y. 509, 143 N.E. 722, and reargument denied in 237 N.Y. 563, 143 N.E. 743; Shupp v. Farrar, 85 Ohio App. *761 366, 88 N.E.2d 924; Champlin Refining Co. v. Smith, 190 Okl. 287, 123 P.2d 253; Vacuum Oil Co. v. Quigg, 127 Okl. 61, 259 P. 858; Cloutier v. Lapane, 64 R.I. 181, 11 A.2d 620; Hentz v. Wallace's Adm'r, 153 Va. 437, 150 S.E. 389; Pierce v. Stolhand, 141 Wis. 286, 124 N.W. 259. This general rule is based on the sound concept that inferences or presumptions of fact do not ordinarily run backward. Beacon Trust Co. v. Wright, 288 Mass. 1, 192 N.E. 70; Blodgett v. Springfield St. R. Co., 261 Mass. 333, 158 N.E. 660; Hanna v. Stedman, 230 N.Y. 326, 130 N.E. 566; Deniff v. Charles R. McCormick & Co., 105 Or. 697, 210 P. 703; McDaniel v. Crabtree, 143 Wash. 168, 254 P. 1091; 31 C.J.S., Evidence, page 789, § 140.

The legal standing of the plaintiffs would not be strengthened on the pressent record if the evidence were interpreted to show that they acted on Wyman's representation on October 15, 1951, when they completed the payment of the purchase price and accepted the deed, and that the termites were present in the dwelling as early as that day. The case would be controlled in that event by this rule of law: "Except where it may be regarded as continuing in character, the truth or falsity of a representation is generally to be determined as of the time when it was made, and subsequent changes in the condition of affairs cannot affect the liability of the person who made it. One who knows, however, that a statement true when made has become false has a duty to disclose the change in conditions." 23 Am.Jur., Fraud and Deceit, section 114.

We must indulge the assumptions on the present record that Wyman made his representation on or about September 10, 1951, and that it was true when he made it.

Under the evidence adduced at the trial, there is no basis whatever for the view that when Wyman assured the plaintiffs in express terms on or about September 10, 1951, that the dwelling was then free from termites, he impliedly represented to them that it would be in the same happy state on October 15, 1951. As a consequence, Wyman's representation cannot be regarded as a continuing one, and its truth or falsity must be determined as of September 10, 1951, rather than as of October 15, 1951. It is to be noted, moreover, that the evidence offered at the trial does not indicate that any of the defendants or any of their agents acquired any knowledge at any time before the final consummation of the sale on October 15, 1951, that Wyman's representation of September 10, 1951, had been rendered untrue by a change in conditions.

The judgment is