Cullens v. Woodruff, 51483
| Decision Date | 14 January 1976 |
| Docket Number | No. 51483,No. 2,51483,2 |
| Citation | 137 Ga.App. 262,223 S.E.2d 293 |
| Parties | G. R. CULLENS et al. v. L. T. WOODRUFF |
| Court | Georgia Court of Appeals |
Katz, Paller & Land, G. Roger Land, John E. Robinson, Atlanta, for appellants.
Arnall, Golden & Gregory, Earnest H. DeLong, Jr., Atlanta, for appellee.
The plaintiffs brought an action to recover $15,000 damages from the defendant. The complaint was in several counts including breach of contract, warranty and negligence. The defendant filed a motion for summary judgment. The trial judge sustained the defendant's motion. The plaintiffs appeal the order granting summary judgment as to the counts alleging breach of contract, warranty and negligence.
On December 13, 1972, appellants entered into a contract with appellee to purchase a house which was partially built. Appellee was to complete construction of the house in accordance with certain specifications set forth in the contract for sale of realty. The following provision was included in the specifications attached to the contract: 'Effective with final acceptance and closing of house by Purchaser, Seller warrants construction for a period of one year, reasonable wear and tear excluded.'
Appellants moved into the house in July, 1973. The sale was consummated on July 15, 1973, and appellee conveyed to appellants by warranty deed. Deposition testimony indicated that the parties intended that the plans and specifications, dated December 13, 1972, would survive the closing and not be merged into any warranty deed. The record contains no copy of the warranty deed or closing documents.
1. An antecedent sales contract covering the purchase and sale of real property generally merges into a subsequent deed involving the same property. Postell v. Hearn, 104 Ga.App. 765, 767, 123 S.E.2d 13, 15. However, where 'it was contemplated by the parties that the subsequent execution of a deed pursuant to a written sales contract was only a part performance of the provisions of the antecedent sales contract and that certain obligations contained in the antecedent contract were to be performed by the defendant after the delivery of possession of the property and the warranty deed thereto and were to survive the execution of the deed, these duties and obligations were not necessarily merged in the deed.' Postell v. Hearn, supra. Whether or not the parties intended a survival of previous agreements and stipulations depends on all of the facts and circumstances of a particular case. The question of intention of the parties regarding survival is for the jury. Pollock v. Morris Hyles Construction Co., Inc., 114 Ga.App. 455, 151 S.E.2d 840.
The record discloses issues of fact regarding whether certain stipulations and agreements survived the closing; and whether appellee...
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Holmes v. Worthey
...the question of merger to whether agreements were to be performed, in point of time, after delivery of the deed (see Cullens v. Woodruff, 137 Ga.App. 262, 223 S.E.2d 293; Reynolds v. Wilson, supra; and McKee v. Cartledge, 79 Ga.App. 629, 632, 54 S.E.2d 665). And in Walton v. Petty, 107 Ga.A......
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...that the parties' intended obligations contained in executory contracts to survive execution of the deed. See Cullens v. Woodruff, 137 Ga.App. 262, 263, 223 S.E.2d 293 (1976); Knight v. Hedden, 112 Ga.App. 847, 849, 146 S.E.2d 556 (1965). See also Kollen v. High Point Forest, Inc., 104 Ga.A......
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Cassville-White Associates, Ltd. v. Bartow Associates, Inc.
...to survive the execution of the deed, these duties and obligations were not necessarily merged in the deed.' " Cullens v. Woodruff, 137 Ga.App. 262(1), 223 S.E.2d 293, 294; C & G Candler v. Ga. Power Co., 138 Ga.App. 279, 280, 226 S.E.2d 87; San Joi, Inc. v. Peek, 140 Ga.App. 397, 398-399, ......
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...circumstances of a particular case. The question of intention of the parties regarding survival is for the jury.' Cullens v. Woodruff, 137 Ga.App. 262(1), 223 S.E.2d 293; Accord: Pollock v. Morris Hyles Const. Co., 114 Ga.App. 455, 151 S.E.2d 840, supra. See also C & G Candler, Inc. v. Ga. ......