P. B. R. Enterprises, Inc. v. Perren, 34229
| Decision Date | 15 March 1979 |
| Docket Number | No. 34229,34229 |
| Citation | 243 Ga. 280,253 S.E.2d 765 |
| Parties | P. B. R. ENTERPRISES, INC. et al. v. PERREN et al. |
| Court | Georgia Supreme Court |
G. Michael Hartley, William L. Martin, III, Douglasville, for appellants.
Ronald C. San Filippo, Atlanta, for appellees.
In this case the appellees, as purchasers of a house and grantors of a subordinate deed to secure debt, sued the appellants, sellers-grantees. The complaint alleged substantially that the house had been still under construction and that the defendants had orally agreed, at the time of closing and both prior and subsequent thereto, to make the necessary repairs and changes and to complete the construction; that, unknown to the plaintiffs at that time, there were certain latent, structural defects in the construction of the house, of which the defendants failed to advise the plaintiffs; that the defendants orally agreed that no payment would be due them under their deed to secure debt until the orally promised repairs and work were performed; that the defendants have failed to comply with the plaintiffs' demands for completion of the work; that the defendants have commenced advertising for a foreclosure of their second mortgage, which would result in the plaintiffs' loss of their home, their equity therein, their good credit rating, and their adequate remedy at law; that the plaintiffs had had to make numerous emergency repairs to the house because of the defendants' failure to do the promised work; that the defendants had made wilful misrepresentations of material facts as to the structural soundness of the house and had failed to abide by a one-year warranty allegedly granted to the plaintiffs. The prayers for relief were for a temporary injunction against the impending foreclosure; money damages for the cost of repairing the alleged structural defects; a set-off of the sum due under the mortgage (in the original amount of the principal) against the amount for the repairs; and punitive damages, interest and costs.
The trial judge, after a hearing, overruled the defendants' motions for directed verdict and to dismiss, and granted the temporary injunction, contingent upon the plaintiffs' payment into the registry of the court of the sum due under the defendants' mortgage and the monthly installments thereon until further order of the court. The defendants appeal. Held :
1. Subject to certain exceptions, the doctrine of caveat emptor applies to the sale of realty, there are no implied warranties as to the physical condition of the property sold, the purchaser buys at his own risk, and the purchaser can not have an abatement of the purchase price on account of the seller's misrepresentations unless he exercised ordinary diligence to discover the falsity of the representations. Collier v. Sinkoe, 135 Ga.App. 732(2, 3), 218 S.E.2d 910 (1975) and cits.
2. The plaintiffs relied on three alleged oral contracts with the defendant sellers, i. e., that there was a one-year warranty on the house, that the sellers would repair all defects in the house, and that the sellers would forbear to foreclose their second mortgage until such promised repairs and completion of construction were made. As far as the record discloses, none of these promises was reduced to writing in the sales contract, the warranty deed, the deed to secure debt, or elsewhere. Jordan v. Flynt, 240 Ga. 359, 362, 240 S.E.2d 858, 861 (1977). Thus, the oral promises of a one-year warranty and a forbearance to foreclose, which were included in neither the sales contract nor in either of the deeds, were unenforceable.
3. As to the promise for effecting completions and repairs on the house after the delivery of possession of the property and the warranty deed, such promises generally may be found to have survived the closing and not merged in the deed. Cullens v. Woodruff, 137 Ga.App. 262(1), 223 S.E.2d 293 (1976) and cits. Again, however, in order for such promise to survive the closing and not merge in the deed, it must have been included in the sales contract, which it was not in the case sub judice. The plaintiffs did not seek rescission based on the vendor's misrepresentations, and "no remedy is generally available for any breach by the vendor of any promise contained in the contract but Omitted in the deed." Walton v. Petty, 107 Ga.App. 753, 756, 131 S.E.2d 655 (1963).
4. The complaint did allege, however, that, unknown to the plaintiffs at the time of closing and prior and subsequent thereto, there were certain latent structural defects in the construction of the house, of which the defendants...
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Holmes v. Worthey
...of the times.')" See also Wilhite v. Mays, 140 Ga.App. 816, 818, 232 S.E.2d 141. I. Merger The recent decision in PBR Enterprises v. Perren, 243 Ga. 280, 253 S.E.2d 765 disposed of cases where prior oral promises are made to complete a house after its purchase and where oral express warrant......
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Hudgins v. Bacon
...816, 232 S.E.2d 141, affirmed it Wilhite v. Mays, 239 Ga. 31, 235 S.E.2d 532 and applied by the Supreme Court in P.B.R. Enterprises v. Perren, 243 Ga. 280, 253 S.E.2d 765. What we and the Supreme Court did in Holmes v. Worthey was extend liability beyond requirement of fraud, to It is also ......
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Oconee Fed. Sav. & Loan Ass'n v. Brown
...Force "). In addition, tender, when required, must be made to the lender, not the trial court. See P. B. R. Enterprises, Inc. v. Perren , 243 Ga. 280, 283 (5), 253 S.E.2d 765 (1979) ; Harpe v. Stone , 212 Ga. 341 (1), 92 S.E.2d 522 (1956). Here, the trial court's order that payments be depo......
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Savage v. KGE Associates Ltd. Partnership
...by delivery and acceptance of the deed. Worthey v. Holmes, 249 Ga. 104, 105(1), 287 S.E.2d 9 (1982); P.B.R. Enterprises v. Perren, 243 Ga. 280, 282(2), 253 S.E.2d 765 (1979). Ultimately, "[t]he application of the doctrine of merger depends upon the intention of the parties." (Citations and ......