Cummings v. Dusenbury

472 N.E.2d 575 (1984)

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Nature of the Case

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Facts

The house in issue was built by Ds during the winter of 1973-74. It was a kit home, made of logs, and had a log interior. Ds lived in it on weekends. In 1977 they lived in the house for a year. Some leakage occurred after this, so the windows were removed and set in foam rubber with adhesive. The windows stopped leaking. The roof, only leaked when there was an extremely cold winter with quite a bit of snow. Ds had no condensation or leakages during the year they lived in the house. Ds put the house on the market and leased it to a number of different people, none of whom complained about leaks. Ps became interested in purchasing the house. Ds indicated that the electric bill was $120 a month in 1980, the windows were thermopane, they didn't sweat, and that 'it was a year round house.' Ps were concerned about being able to remain warm in the house during the winter and living in it year-round. Ps moved into the house in mid-August and soon after moving found that the roof and the windows leaked when it rained. Ps had a problem with flies coming into the house. The fly problem got worse in the winter and the wintertime. The walls would drip from condensation and were wet to the touch. In the fall when it rained, the roof would leak in three or four places, but when winter started the roof leaked all over the place. Ps' 19-month-old child was affected by the condensation on the walls because the furniture had to be moved away from the walls to keep it dry. Ps sued for rescission of the contract on the ground of unilateral mistake in believing that the home was suitable for year-round living Ps alleged fraud, and breach of implied warranty of habitability. The trial court entered judgment for Ps, rescinded the contract, and awarded damages, less an amount for rent for the period of time they occupied the premises. Ps' claim for punitive damages was denied. Both parties appealed. Ds contend that only a mutual mistake, not a unilateral mistake, can justify rescission.