Fraser v. Schoenfeld
| Decision Date | 21 November 1978 |
| Docket Number | No. 78-33,78-33 |
| Citation | 364 So.2d 533 |
| Parties | Thomas J. FRASER, Appellant, v. Irving SCHOENFELD and Ruth Schoenfeld, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Richard J. Mandell, Miami, for appellant.
Eli Breger, North Miami Beach, for appellees.
Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
The appellant, Thomas J. Fraser, contracted to purchase a fifty year old apartment house on Miami Beach from the appellees, Irving Schoenfeld and Ruth Schoenfeld, his wife. Before closing, Fraser discovered what he believed to be violations of the building and zoning regulations of the City of Miami Beach. He wrote a letter declining to close. Thereafter, upon the statement of the Schoenfelds that they would sue him if he did not close, the purchase and sale were completed and the deed and possession delivered. Shortly after the closing of the sale, the City of Miami Beach building inspectors uncovered substantial and numerous defects in the building. The appellant, Fraser, sued for damages alleging a violation of a covenant in the contract of sale. The covenant reads as follows:
Appellees sued upon the purchase money note, which was in default. The trial judge, after a trial before the court without jury, allowed recovery to Fraser for certain incidental repairs necessary to correct plumbing defects but denied recovery for the alleged structural violations.
This appeal urges error by the trial court in failing to allow the purchaser, Fraser, recovery for the substantial defects that existed in the building prior to the sale but which the City of Miami Beach had not inspected until after the sale.
It is important that this is not a case alleging fraud. Not only is fraud absent from the pleadings, but also on appeal it is stipulated that fraud is not involved.
We hold that where, as here, the purchaser has knowledge of claimed violations and, thereafter, closes the deal, he is precluded by the doctrine of merger from a subsequent suit on a covenant contained in the contract of sale. See the rule of law in Volunteer Security Co. v. Dowl, 159 Fla. 767, 33 So.2d 150, 151 (1947); and Stephan v. Brown, 233 So.2d 140, 141 (Fla.2d DCA 1970).
The present case is distinguished from our recent opinion in Steinberg v. Bay Terrace Apartment Hotel, Inc., 363 So.2d 58 (Fla.3d DCA 1978), in that, first of all, the Steinberg case dealt with the dismissal of a complaint. Secondly, and of more importance, is the fact that the Steinberg opinion is based on an exception to the general rule of merger. As stated...
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American Nat. Self Storage, Inc. v. Lopez-Aguiar, LOPEZ-AGUIA
...and acceptance of warranty deeds. Worthey v. Holmes, 249 Ga. 104, 287 S.E.2d 9 (1982).3 While the seller relies on Fraser v. Schoenfeld, 364 So.2d 533 (Fla. 3d DCA 1978), and Steinberg v. Bay Terrace Apartment Hotel, Inc., 375 So.2d 1089 (Fla. 3d DCA 1979), we find these cases to be inappos......
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In re Ranch House Motor Inn Intern., Inc., Bankruptcy No. 8:03-BK-23940-MGW.
...v. Cruikshank, 484 So.2d 1361, 1362 (Fla. 2d DCA 1986); Kidd v. Fowler, 498 So.2d 969, 970 (Fla. 4th DCA 1986); Fraser v. Schoenfeld, 364 So.2d 533, 534 (Fla. 3d DCA 1978). As applied in that context, "preliminary agreements and understandings relative to the sale of property usually merge ......
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S. Nat'l Track Servs., Inc. v. Gilley, 1D13–5412.
...a summary judgment, and the seller appealed, arguing reversal was warranted based on the merger doctrine pursuant to Fraser v. Schoenfeld, 364 So.2d 533 (Fla. 3d DCA 1978). Id.In Fraser, which relied on the same cases as Brown, the Third District found the buyer's claim for damages based on......
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S. Nat'l Track Servs., Inc. v. Gilley, CASE NO. 1D13-5412
...summary judgment, and the seller appealed, arguing reversal was warranted based on the merger doctrine pursuant to Fraser v. Schoenfeld, 364 So. 2d 533 (Fla. 3d DCA 1978). Id. In Fraser, which relied on the same cases as Brown, the Third District found the buyer's claim for damages based on......