{¶ 54} I agree with the outcome reached by the majority. I would find, however, that the "caveat emptor" defense cannot be raised by Findeiss Realty or Zemba. I find that the giving of the instruction was harmless because, as the majority states, the jury rendered a verdict in favor of both defendants on appellants' negligent-misrepresentation claim. The jury also found no breach of contract by Findeiss.
{¶ 55} The defendants presented testimony from Schaeffer, appellant's agent from Findeiss. She testified that she asked the seller, Hughes, about the septic tank. Schaeffer testified that Hughes informed her that he had no idea where the septic tank was. He had owned the property for 18 to 20 years and had bought it on land contract without an inspection. Hughes also advised her that he did not believe the house was on the city sewer because he had never been billed for that.
{¶ 56} Schaeffer testified that appellants had inquired whether Hughes would put in a hew septic system, but Hughes refused, pointing out that their offer was $20,000 lower than his asking price. Schaeffer testified that she told Mrs. Pettit they didn't have to buy the property, and Pettit said they wanted the property no matter what.
{¶ 57} Schaeffer and appellants discussed the system in preparing the contingencies in their purchase offer: "When I come down to the — or the septic inspection, they declined to have it because they didn't know what was there; and they didn't want to arise any questions from anyone as to what was there. And [Mrs. Pettit's] remark was `I want this house so, you know, I don't think that's necessary.'" The only contingency in appellants' final offer was regarding the sale of their former home.
{¶ 58} The jury could believe the above testimony and find that Findeiss did not breach any duty to appellants. Zemba's report that it could not locate the septic tank actually underscored Hughes's statement that he did not know where it was. The jury found that Zemba did not make any reckless or negligent representations to appellants, and the evidence supports this finding. *Page 354
{¶ 59} The dissent notes that even though the jury's verdicts found no negligence on the part of any defendant, the response to interrogatory No. 12 ascribes percentages of negligence to all parties.
{¶ 60} Any argument regarding inconsistent interrogatories must be raised while the jury is still impaneled and the court has the full range of choices under Civ. R. 49 before it. Schade v. Carnegie Body Co. (1982),70 Ohio St.2d 207, 24 O.O.3d 316, 436 N.E.2d 1001. The record does not indicate that appellants raised the issue before the trial court, and they assigned no error specifically raising the issue before us.
{¶ 61} Regardless, the jury found appellants 60% negligent, which would prohibit their recovery.
{¶ 62} While I find that the court erred in not limiting the caveat emptor instruction to the seller, I also find that it was cured by the verdict. See Beers v.Mally (August 7, 1995), Morrow App. No. CA-810,1995 WL 498960.