Appeal from decree of Court of Common Pleas of Delaware County, No. 3558 of 1967, in case of Richard L. Elderkin and Clair H. Elderkin v. Gerald N. Gaster.
Joseph T. Doyle, with him Trevaskis, Doyle, Currie, Nolan & Bunting, for appellants.
Dale A. Betty, with him Kassab, Cherry, Curran & Archbold, for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the decision of this case. Concurring Opinion by Mr. Justice Eagen.
This appeal arises out of a dispute concerning an agreement of sale, under the terms of which the appellants agreed to purchase from the appellee a lot and home to be constructed thereon. The water supply for this home was to be provided by a private well drilled on the lot. It is undisputed that appellee, the buildervendor of the home, adequately constructed the home and the well; it is also undisputed that the well has never produced water of a quality suitable for human consumption. Appellants refused to release the remaining balance in the construction fund unless and until appellee would provide them with an adequate supply of unpolluted water. Appellee sued the appellants for the balance of the construction fund, whereupon appellants brought suit in equity against appellee praying that he be ordered to supply them with an adequate quantity of water fit for human consumption. The two causes were consolidated for hearing and tried before a judge sitting without a jury. The lower court ruled in favor of appellee in both suits and awarded appellee the monies due him under the construction agreement. Although finding that it was not appellee's duty to supply the home buyers with a source of potable water, the trial judge nevertheless ordered the builder-vendor to redrill the well to the deepest water bearing stratum on appellants' property. The Elderkins appeal,*fn1 and we reverse.
A more detailed statement of the background is necessary. The pertinent facts are as follows: Appellee Gaster subdivided an area of land owned by him and referred to in the record as Spring Valley, Middletown Township, Delaware County, into 32 lots, each approximately one acre in size. Gaster would sell a lot to an interested purchaser only if the purchaser concurrently agreed to have Gaster construct a home on the property. For sales purposes, appellee maintained a model home in the development.
On January 16, 1963, Gaster and the Elderkins entered into an agreement whereby the latter would purchase a lot and home in Spring Valley for a total consideration of $26,430, $500 of which was paid at the signing of the sales agreement. The balance was to be paid partially at settlement of the sale transaction and partially under the terms of a subsequently executed construction agreement. On January 31, 1963, appellee deeded a lot to appellants for the consideration of $6,000,*fn2 and the parties executed a construction agreement obligating the appellee to construct a house, similar to the display house, on appellants' lot. For this service appellant was to receive a total of $20,430 in installment payments to be paid at various stages of construction. It was the final $4,086 of this fund, withheld by appellants, that appellee was awarded by the lower court.
Attached to the construction contract was a list entitled "Description of Materials", which noted the detailed
specifications of the materials which would be used in constructing the several parts of the Elderkins' home. Pertinent to this case is the notation, under heading "Plumbing", that the water supply would be by "individual (private) system."*fn3 Otherwise, the agreement of sale, the deed to the lot, and the construction agreement are silent on the matter of water supply or the quality of the water to be supplied.*fn4
Appellants took possession of the premises on June 1, 1963, when the house, except for the private well, was substantially completed. The well was completed and water supplied to the home on June 17, 1963.*fn5 Shortly thereafter appellants had the water from their well tested by chemical analysis.*fn6 These tests showed the water to contain concentrations of organic nitrates and synthetic detergent in excess of the limits noted by the "Public Health Service Drinking Water Standards (Revised 1962)" ...