Mulkey v. Waggoner, 71359
| Decision Date | 03 December 1985 |
| Docket Number | No. 71359,71359 |
| Citation | 177 Ga.App. 165,338 S.E.2d 755 |
| Parties | MULKEY v. WAGGONER. |
| Court | Georgia Court of Appeals |
B.J. Roberts, Decatur, for appellant.
Gene E. Massafra, Decatur, for appellee.
Directed Verdict--"As Is" Real Estate Contract. Mrs. Sheryl Waggoner purchased a house from Z.A. Mulkey. The sale was handled by Albert Mulkey d/b/a Mulkey Realty Co. A provision of the sales contract required the seller to deliver to the purchaser a termite certificate declaring the property free from termite infestation or damage. At the time of closing Z.A. Mulkey stated he did not have a certificate. Mrs. Waggoner refused to proceed with the closing at which time Mulkey promised to give her such a certificate to complete the transaction. The agent for Mulkey typed into the sales contract the words: "The sale is as is condition." Subsequent to the transfer of the house, Mrs. Waggoner discovered wood beetle damage. She also discovered that Z.A. Mulkey had hired an exterminator to treat an infestation over two years before the transfer. Mrs. Waggoner sued Z.A. Mulkey as seller, Albert Mulkey as agent, and the exterminating company for fraud in the inducement of the contract and affirmative and wilful nondisclosure of the insect damage. Prior to judgment by a jury, Mrs. Waggoner dismissed her complaint against the exterminator without prejudice. After verdict, Mrs. Waggoner settled the claim against Albert Mulkey. Thus, the only party pursuing the appeal is Z.A. Mulkey against whom the jury assessed general damages and punitive damages.
At the completion of Mrs. Waggoner's case-in-chief, Z.A. Mulkey moved for a directed verdict on the grounds that the insertion of the words "as is" in the sales contract removed any question of fraud from the case and required the trial court to rule on the case as a matter of law. The trial court declined to direct a verdict and the jury's verdict in favor of Mrs. Waggoner followed. After judgment, Mulkey moved for new trial and judgment notwithstanding the verdict on the same ground. It is the denial of the motion for directed verdict and JNOV that forms the basis of this appeal by Z.A. Mulkey. Held:
In his notice of appeal, Mulkey directed the court below to forward the entire record to this court but expressly directed that the transcript of the jury trial not be included nor forwarded to this court. Mulkey seeks to argue as a matter of law that an "as is" contract completely excludes alleged fraud as to the condition of the premises on grounds that the acceptance of a contract with an "as is" clause forces the purchaser to an absolute duty of inspection, i.e., an unassailable application of the legal principal of caveat emptor.
We are not persuaded that such is the state of the law. As was pointed out by this court in Wilhite v. Mays, 140 Ga.App. 816, 817, 232 S.E.2d 141, fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. Traditionally the rule of caveat emptor had applied and the sales contract merged into the warranty deed and foreclosed any right of remedy by the purchaser after the closing of the contract by transfer of the deed. See Holmes v. Worthey, 159 Ga.App. 262, 282 S.E.2d 919. Wilhite, supra, changed the rule of caveat emptor and placed upon the builder-seller a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction. See also Holmes, supra.
Although there appear to be no cases directly concerned...
To continue reading
Request your trial
-
S Dev. Co. v. Pima Capital Mgmt. Co.
...to the vendor, but not to the purchaser, and would not be disclosed by a reasonable and diligent inspection."); Mulkey v. Waggoner, 177 Ga.App. 165, 338 S.E.2d 755, 757 (1985) ("[T]he effect of an `as is' clause on the passive concealment liability arising out of the duty to disclose ... co......
-
Teer v. Johnston
...have held that an “as is” real-estate contract does not protect a dishonest seller from intentional fraud include Mulkey v. Waggoner, 177 Ga.App. 165, 338 S.E.2d 755 (1985); Ferguson v. Cussins, 713 S.W.2d 5 (Ky.Ct.App.1986); Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106 (1992); Clemens v. L......
-
Browning v. Stocks
...who knows of the defect does nothing to prevent the buyer from discovering it but simply keeps quiet about it.2 Mulkey v. Waggoner, 177 Ga.App. 165, 166, 338 S.E.2d 755 (1985); Ben Farmer, 212 Ga.App. at 75-76, 441 S.E.2d 421. In support of these claims, the Stockses presented evidence that......
-
Jaffe v. Bolton
...(1983). The "as-is" clause basically refers to the obvious or reasonably discernible defects in the property. Mulkey v. Waggoner, 177 Ga.App. 165, 338 S.E.2d 755, 757 (1985). What is noteworthy in this case is the fact that these code violations existed at the time the parties entered into ......
-
Real Property - T. Daniel Brannan, Stephen M. Lamastra, and William J. Sheppard
...defects would affect the decision of the purchaser to complete the transaction. Id. at 76, 441 S.E.2d at 423 (citing Mulkey v. Waggoner, 177 Ga. App. 165, 166 S.E.2d 755 (1985)). 281. Id. at 74, 441 S.E.2d at 422. 282. Id. 283. Id. 284. Id. at 75, 441 S.E.2d at 423. 285. Id. 286. Id. at 76,......