Kollen v. High Point Forest, Inc., 39107
| Decision Date | 19 October 1961 |
| Docket Number | No. 39107,No. 2,39107,2 |
| Parties | R. B. KOLLEN v. HIGH POINT FOREST, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The petition stated a cause of action for damages arising from an alleged breach of a written contract for the conveyance of realty, it being a question for the jury as to whether the provisions of the antecedent sales contract, for the breach of which the suit was brought survived the subsequent execution of a deed by the parties, and were not merged therein.
The plaintiff filed his petition in the Civil Court of Fulton County against High Point Forest, Inc., a Georgia corporation, to recover damages in the amount of $1500 arising from an alleged breach of contract. The petition, as thrice amended, together with exhibits attached thereto, showed the execution by plaintiff and defendant on August 7, 1959, of a contract to convey certain described real property and the improvements thereon, and including, among other things, a warranty of workmanship, materials and dry basement for a period of one year as to the improvements. It was alleged that the plaintiff took possession of the property on August 19, 1959, in reliance on said contract and that payment of the purchase price and acceptance of the deed to the property occurred on August 25, 1959. The petition further alleged that it was always the intention and purpose of the parties that the special provisions of the sales contract would not merge in the warranty deed but that they would survive its execution, the deed being intended by both parties to be only a partial performance of the antecedent sales contract. The petition further alleged demands on the defendant to comply with the contract, its failure to perform and resultant special and general damages.
The plaintiff was required by the special demurrers of the defendant to attach a copy of the warranty deed to his petition as an exhibit, said deed disclosing that none of the terms of the contract of sale, for the breach of which this action was brought, were incorporated therein or referred to in any manner.
The defendant filed a motion to dismiss in the nature of a general demurrer to the petition, as finally amended, which was granted by the trial court. The exception is to that judgment, it being the contention of the plaintiff that a cause of action was set forth against the defendant since under the allegations of the petition the special stipulations in the sales contract, for the breach of which the instant suit was brought, were collateral to and did not merge in the deed subsequently executed by the parties.
Robert B. Kollen, in pro. per.
Ronald J. Armstrong, McCready Johnston, Atlanta, for defendant in error.
The facts and ruling in the case of McKee v. Cartledge, 79 Ga.App. 629, 54 S.E.2d 665, are controlling in this case and require the reversal of the judgment sustaining the defendant's motion to dismiss in the nature of a general demurrer, and dismissing the petition. In that case it was held that, since under the allegations of the petition, it was contemplated by the parties that certain duties and obligations contained in the executory contract for the conveyance of land were to be performed by the defendant after the delivery of possession of the property, and the warranty deed thereto, these duties and obligations were not merged in the deed and the acceptance of delivery of possession. It was thus held that 'the intention of the parties being controlling and a question for the jury, the court erred in sustaining the demurrers to the petition.' McKee v. Cartledge, 79 Ga.App. 629, 632, 54 S.E.2d 665, 657, supra.
While both this court and the Supreme Court have on many occasions enunciated and followed the general rule that antecedent sales contracts covering the purchase and sale of real property merge in a subsequent deed involving the same property (Keiley v. Citizens Savings Bank and Trust Co., 173 Ga. 11(1), 159 S.E. 527; Taylor v. Board of Trustees, etc., 185 Ga. 61, 194 S.E. 169; Loftis v. Clay, 164 Ga. 845, 139 S.E. 668; Pierce v. Dennett, 163 Ga. 471, 136 S.E. 440; Augusta Land Co. v. Augusta Ry. & Electric Co., 140 Ga. 519, 79 S.E. 138; Ingram v. Smith, 62 Ga.App. 335(3), 7 S.E.2d 922; Willingham v. Anderson, 90 Ga.App. 799, 84 S.E.2d 471; Johnson v. Young, 79 Ga.App. 276(2), 53 S.E.2d 559; and Smith v. White, 75 Ga.App 303, 43 S.E.2d 275), a careful examination of these cases does not disclose any rulings inconsistent with or repugnant to the recognition and adoption by this court in McKee v. Cartledge, 79 Ga.App. 629, 54 S.E.2d 665, supra, of an exception to this general rule, which exception has been almost universally recognized by the highest courts of other jurisdictions. See 55 Am.Jur., Vendor & Purchaser § 328 p. 757; 26 C.J.S. Deeds § 91(c), p. 842; 38 A.L.R.2d p. 1310; Corbin on Contracts (1951 Ed.) § 1319.
The doctrine of merger of an antecedent sales contract for the conveyance of realty with the deed executed subsequently thereto rests entirely upon the same principles as the doctrine of merger of prior parol agreements with the written contract executed subsequently...
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