Helmer v. Hegidio

• Decision Date: 01 October 1974
• Docket Number: No. 1,No. 49506,49506,1
• Citation: 133 Ga.App. 168,210 S.E.2d 332
• Parties: Percy C. HELMER, Sr., et al. v. Joe L. HEGIDIO et al
• Court: Georgia Court of Appeals

Page 332

210 S.E.2d 332

133 Ga.App. 168

Percy C. HELMER, Sr., et al. v. Joe L. HEGIDIO et al.

No. 49506.

Court of Appeals of Georgia, Division No. 1.

Oct. 1, 1974.

Rehearing Denied Oct. 29, 1974.

Galkin, Katz & Tye, George H. Freisem, II, Donald A. Weissman, Atlanta, for appellants.

Mackay & Elliott, Thomas W. Elliott, Decatur, for appellees.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Appeal was taken in this case from the denial of the defendant's motion for summary judgment which was originally denominated as a motion to dismiss.

The complaint as amended alleged that the plaintiff purchased a lot and house from the defendants (conveyance was by warranty deed); that after the plaintiffs moved in they discovered certain defects in the property, inter alia, with regard to the fireplace and to the basement waterproofing; that the defendants refused to repair the listed defects after due notice. It was further alleged that the defendants gave the plaintiffs a one year guarantee on all materials and workmanship used in the construction of the house. The complaint sought recovery of $14,088.56.

The defendants answered denying the material allegations of the complaint and asserting that any alleged agreements were merged into the subsequent warranty deed entered into between the parties. The defendants also moved to dismiss the complaint and by adding additional documentary evidence in the form of the warranty deed and affidavits, converted their motion into one for summary judgment.

By affidavit in opposition to the motion for summary judgment the plaintiffs asserted that the defendants, prior to the closing, promised to fix the fireplace and basement and to take care of certain incidental problems upon which promises they relied in closing the transaction. The record contains no copy of the sales contract or the closing documents other than the warranty deed. The trial judge after overruling the motion for summary judgment granted a certificate for immediate review, and an appeal was taken to this court. Held:

Before this court the defendant urges the well settled rule that oral promises leading up to the execution of a written instrument are merged therein upon execution of such instrument. Postell v. Hearn, 104 Ga.App. 765, 123 S.E.2d 13; Cox v. Wilson, 109 Ga.App. 652, 137 S.E.2d 47; Pollock v. Morris Hyles Construction Co., 114 Ga.App. 455, 151 S.E.2d 840.

Nevertheless, there is an equally well settled exception to this rule as set forth in Knight v. Hedden, 112 Ga.App. 847, 848, 146 S.E.2d 556, 558: 'Where there are stipulations in the preliminary contract or contracts of which the conveyance is not a performance, the question whether such stipulations are merged in the deed depends upon the intent of the parties . . . The evidence of such intention may exist in In Little v. Merck, 124 Ga.App. 73, 183 S.E.2d 234, in an analogous situation, similar contentions were made with regard to merger, failure to comply with the Statute of Frauds and as to the doctrine of caveat emptor. This court held: 'Where it is the intention of the parties that certain duties are to be performed after the delivery of the deed and acceptance of possession, the duties and obligations are not merged in the deed.' P. 75, 183 S.E.2d p. 236. Furthermore, even though the promise to perform the duties was oral 'because there had been full performance on one side (payment of purchase price and acceptance of possession and deed) the transaction was...