Knight v. Breckheimer
| Decision Date | 02 April 1985 |
| Docket Number | No. 2648,2648 |
| Citation | 3 Conn.App. 487,489 A.2d 1066 |
| Parties | Lee H. KNIGHT et al. v. Herbert L. BRECKHEIMER et al. |
| Court | Connecticut Court of Appeals |
Ernest F. Teitell, Stamford, for appellants (plaintiffs).
John C. Parker, Wilton, filed a brief, for appellees (defendants).
Before HULL, SPALLONE and DALY, JJ.
The plaintiffs instituted an action for damages against the defendants alleging fraudulent misrepresentation, failure to disclose and breach of warranty arising out of the sale of a residence. From a judgment rendered by the trial court in favor of the defendants, the plaintiffs have appealed.
The trial court found the following facts: On July 1, 1976, the parties entered into a written agreement whereby the plaintiffs would purchase the defendants' home located at 24 Glen Hill Road, Wilton. The defendants, whose family consisted of three people, had not encountered any serious problem with the septic system for the eleven years they owned the premises. The system had been cleaned five times during that period but required no further servicing. The defendants made no representations concerning the system but, if asked, would have indicated they encountered no problems. The plaintiffs, whose menage consisted of nine people, had the premises inspected by a contractor prior to the closing and nothing in his report indicated any problem with the septic system. Shortly after the closing and taking occupancy, the plaintiffs experienced difficulty with the system.
The court further found that the sales agreement stated that the plaintiffs examined the premises and were satisfied with its condition, and that the defendants had not made any representations upon which the plaintiffs relied. 1 The agreement did not contain warranties express or implied beyond the date of closing. 2
The trial court concluded that the plaintiffs failed to sustain their burden of proof concerning material misrepresentations made by the defendants regarding the septic system which induced the plaintiffs to purchase the premises, or concerning nondisclosure of facts which it was the defendants' duty to divulge. Further, since there was no actionable fraud, the plaintiffs' breach of warranty action failed.
The plaintiffs have challenged the trial court's findings of fact and conclusions of law. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). Id., 222, 435 A.2d 24.
The defendants denied receiving any inquiry or making any oral representations about the septic system. The credibility of witnesses is a matter for the trier. Holden & Daly, Connecticut Evidence (Sup.1983) § 125(a), pp. 449-51. Hence, we find no error as to the first two counts.
As to the third count, the defendants concur that there are separate actions for fraud and breach of warranty. The plaintiffs maintain that the warranties and representations that the "septic system ... shall be in working order" remain extant and survive the acceptance of the deed. The defendants claim that a merger occurred. 3
The general rule is that "acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima...
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...of the proceeding contract, and that the unperformed provisions of the contract do not merge into the deed."); Knight v. Breckheimer, 3 Conn.App. 487, 489 A.2d 1066 (1985) (Relying on Florida case that collateral agreements are not merged into the subsequent deed.); Allied Builders, Inc. v.......
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...by the merger doctrine. The Connecticut courts have long recognized the doctrine of merger by deed. See Knight v. Breckheimer, 3 Conn.App. 487, 490, 489 A.2d 1066 (1985). “[U]nder the principle of merger by deed, the terms of the deed would automatically replace and supersede the terms of t......
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Biro v. Matz, 32413.
...... are merged in the deed although omitted therefrom....” (Internal quotation marks omitted.) Id., quoting Knight v. Breckheimer, 3 Conn.App. 487, 490, 489 A.2d 1066 (1985). There are two grounds on which we can sustain the court's judgment. One is the contractual “as is” language indicati......
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...by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.' " Knight v. Breckheimer, 3 Conn.App. 487, 490, 489 A.2d 1066 (1985), quoting Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). " 'We cannot retry th......