Georgia Mobile Home Development Corp. v. Kuter

• Decision Date: 12 June 1969
• Docket Number: 44270,Nos. 44269,No. 1,s. 44269,1
• Citation: 119 Ga.App. 781,168 S.E.2d 858
• Parties: GEORGIA MOBILE HOME DEVELOPMENT CORPORATION v. Gilford S. KUTER. KUTER v. GEORGIA MOBILE HOME DEVELOPMENT CORPORATION
• Court: Georgia Court of Appeals

Page 858

168 S.E.2d 858

119 Ga.App. 781

GEORGIA MOBILE HOME DEVELOPMENT CORPORATION v. Gilford S. KUTER.

KUTER v. GEORGIA MOBILE HOME DEVELOPMENT CORPORATION.

Nos. 44269, 44270.

Court of Appeals of Georgia, Division No. 1.

June 12, 1969.

Syllabus by the Court

1. There were questions of fact relative to the terms of the contract which required determination by a jury. Hence, the trial judge erred in directing a verdict in favor of the defendant against the plaintiff's claim.

2. In actions for fraud, actionable representations must relate to past or existing facts and cannot consist of mere broken promises, unfulfilled predictions, or erroneous conjectures as to future events.

3. The defendant failed to present a question for consideration by this court regarding the exclusion of certain testimony.

Georgia Mobile Home Development Corporation filed its complaint against G. S. Kuter in the Rockdale Superior Court. The claim sought to recover from the defendant $59 due under a sale contract signed by the defendant. The portion of the contract in issue provided that: 'Purchaser agrees to the payment of an annual sum in addition to the purchase price in the amount of $59. Said sum together with a like sum to be paid by all other purchasers in this subdivision is to be used for the establishment, maintenance, operation and upkeep of the recreational facilities provided, or to be provided, in this subdivision and purchaser further agrees at closing to subscribe to the articles and bylaws of a property owners' association which has been created for the joint benefit of all the owners in this subdivision for the maintenance and operation of said park and recreational facilities through the management contract existing between the owners' association and seller.' The sale contract was signed before the plaintiff corporation changed its name from Georgia Cooperative Trailer Parks, Inc., to its present name. The plaintiff was obligated under the sale contract to convey certain real estate to the defendant by warranty deed.

The defendant answered denying the material allegations of the plaintiff's complaint and setting out that he was not liable because the plaintiff had not signed the sale contract and had failed to perform certain obligations under it. By counterclaim the defendant alleged he was induced to sign the sale contract by false and fraudulent representations on the part of the plaintiff, including failure to enforce certain restrictions, which resulted in damages to him in the amount of $10,000. The case came on for trial before a jury. On motions for directed verdict by the respective parties, the trial judge directed a verdict against the defendant on his counterclaim and against the plaintiff on his claim. In case 44269, plaintiff appeals from the judgment adverse to it. In case 44270, the defendant appeals from the judgment adverse to him.

The evidence adduced on the trial is as follows. The defendant testified that he entered into the sale contract with the plaintiff, and received a deed to the property described in it. He further testified that he knew the obligation to pay $59 a year was for recreation and maintenance and that he had no complaint about such recreational facilities. He admitted that in 1966, he was billed for $59 and did not pay that bill. There was evidence that the facilities were not completed until 1965 and during the interim period, from 1963 to 1965, the defendant was not billed in the amount of $59 per year.

The defendant testified that a representative of the plaintiff, at the time of the purchase, explained that upon the purchase of the property the defendant would become a member of the property owners' association and would be billed by that association for the $59 referred to in the contract. Based on these representations, defendant bought a lot. In regard to the property owners' association, a witness for the plaintiff admitted that it was a nonfunctioning entity in 1963, at the time of the execution of the contract.

The conveyance of this lot was subject to restrictive covenants and certain rules and regulations which were introduced into evidence. In this regard, the defendant testified that the plaintiff had failed to enforce the restrictive covenants, rules and regulations. Specifically, defendant testified that a majority of the lot owners in the plaintiff's subdivision failed to comply with the rules and regulations which required trailers to be under-skirted; that there was water pollution in the lake, despite representations made to him as to the clear quality of the water. The defendant further testified that the plaintiff did not require lot purchasers to assume the $59 obligation but that plaintiff had waived this in making certain sales. A witness for the plaintiff testified that all buyers were charged $59 a year for the lot but if they owned a second lot without a trailer on it, they were only charged $24.

Alston, Miller & Gaines, Ronald L. Reid, Atlanta, for appellant.

Ballard & Thigpen, Troy Thigpen, Jr., Covington, Smith, Cohen, Ringel, Kohler, Martin & Lowe, Meade Burns, Robert W. Beynart, Atlanta, for appellee.

QUILLIAN, Judge.

1. The language quoted in the statement of facts relative to the actual payment, relied upon by the plaintiff to enforce such provision, appears in the contract of sale of land but does not appear in the warranty deed by which the land was conveyed. The defendant, therefore, contends that the general rule as to merger of antecedent agreements into a subsequent warranty deed must apply; since the clause was not reiterated in the deed it did not survive the execution thereof, citing Postell v. Hearn, 104 Ga.App. 765, 123 S.E.2d 13; Cox v. Wilson, 109 Ga.App. 652, 137 S.E.2d 47.

We recognize the well established rule of merger; however, the courts of this state have engrafted an exception to this general principle. 'When it is contemplated by the parties that certain duties and obligations contained in an executory contract for the conveyance of land are to be performed after the...