Little v. Merck
| Decision Date | 04 June 1971 |
| Docket Number | No. 3,No. 46050,46050,3 |
| Citation | 183 S.E.2d 234,124 Ga.App. 73 |
| Parties | H. O. LITTLE v. Lawrence H. MERCK |
| Court | Georgia Court of Appeals |
Curtis R. Richardson, Decatur, for appellant.
T. M. Allen, Jr., Decatur, for appellee.
Syllabus Opinion by the Court
In an action for damages based on a builder's failure to correct a defect in the grading and drainage of a house, defendant appeals from the judgment and from the denial of his motion to strike part of the complaint.
Plaintiff-buyer signed a contract with defendant-builder on February 3, 1969. It was a standard-form printed contract used by real estate agents for the sale of residential property and was also signed by the broker. The only thing in the contract which would indicate anything other than the usual sale of a finished dwelling was a provision that closing would occur upon the completion of the house. It was, in fact, still under construction at the time the contract of sale was made.
Plaintiff made several trips to the site during which he noticed a large accumulation of water in the basement. He called defendant's attention to this condition and defendant assured him it would be fixed. The closing took place on May 15. At that time, plaintiff again brought up the water problem and asked defendant for assurance that it would be handled. He testified that he went through with the sale only after receiving that assurance. Defendant himself testified to the truth of this exchange and that He also testified that he returned in October and regraded the yard and lowered the drain. With water still in his basement, plaintiff brought this action in July 1970. The complaint uses the words breach of warranty, negligent manner of landscaping, and improper installation of a drain line.
1. Defendant contends the court erred in denying his motion to strike the paragraph of the complaint in which the word 'negligent' is used. He cites Whiten v. Orr Construction Co., 109 Ga.App. 267, 136 S.E.2d 136, for the proposition that there can be no recovery based upon negligence against a vendor-builder. While this is a correct statement of the law, the main thrust of the paragraph in question is to set out plaintiff's damages-the amount which he might recover under any theory of law. Since the balance of the complaint alleges facts which state a claim, the court did not err in refusing to strike an essential element of the complaint because of an improper stray word.
2. Defendant contends that the contract between the parties was for the sale of real property (not for the building of a house); therefore the doctrine of caveat emptor applies and absent a showing of fraud and deceit, plaintiff has no right to recover. He further contends that any previous oral or written agreements were merged in and extinguished by the deed. Finally, he contends that any oral agreement concerning the water problem would be unenforceable both...
To continue reading
Request your trial
-
Holmes v. Worthey
...having been expressly included in the sales contract, merge into and are extinguished by the deed. (Compare, however, Little v. Merck, 124 Ga.App. 73, 75, 183 S.E.2d 234, and Kollen v. High Point Forest, 104 Ga.App. 713, 714, 123 S.E.2d 10 and see especially McKee v. Cartledge, supra.) So l......
-
Haley v. Oaks Apartments, Ltd.
...provided to survive the deed, as consideration for the appellants to proceed with the closing as scheduled. See, e.g., Little v. Merck, 124 Ga.App. 73, 183 S.E.2d 234, overruled on other grounds, Holmes v. Worthey, 159 Ga.App. 262, 268, 282 S.E.2d 919, affirmed in Worthey v. Holmes, 249 Ga.......
-
San Joi, Inc. v. Peek
...v. High Point Forest, Inc., 104 Ga.App. 713, 715, 123 S.E.2d 10; Knight v. Hedden, 112 Ga.App. 847, 146 S.E.2d 556; Little v. Merck, 124 Ga.App. 73, 75, 183 S.E.2d 234. 'Whether or not the parties intended a survival of previous agreements and stipulations depends on all of the facts and ci......
-
C & G Candler, Inc. v. Georgia Power Co.
...occur. McKee v. Cartledge, 79 Ga.App. 629, 631(4), 54 S.E.2d 665; Knight v. Hedden, 112 Ga.App. 847, 146 S.E.2d 556; Little v. Merck, 124 Ga.App. 73, 75, 183 S.E.2d 234 and A review of the record conclusively shows (1) that the appellant negotiated for the payment of $50,000 to be made upon......