Perrett v. Dollard, 71329
| Decision Date | 13 November 1985 |
| Docket Number | No. 71329,71329 |
| Citation | 176 Ga.App. 829,338 S.E.2d 56 |
| Parties | PERRETT et al. v. DOLLARD et al. |
| Court | Georgia Court of Appeals |
Paula K. Taylor, Albany, for appellants.
Alfred N. Corriere, Albany, for appellees.
This is an action for fraud and breach of contract arising from the appellees' sale of an allegedly defective house to the appellants. The trial court granted summary judgment to the appellees based on its determination that there was no evidence of actionable fraud and that a recovery in contract was precluded by an "as is" clause contained in the contract.
It appears without dispute from the record that the appellees had advertised the house prior to its completion at a sale price of $150,000. After some negotiation through a real estate agent, the parties agreed on a sale price of $105,000, with the following written stipulation: Held:
1. The language of the contract clearly specified that the house was sold 'as is' and was effective to exclude any implied warranties. Accord Joseph Charles Parrish, Inc. v. Hill, 173 Ga.App. 97(2), 325 S.E.2d 595 (1984). We reject the appellants' contention that a fact question as to the intention of the parties in this regard was created by an affidavit from the real estate agent involved in the negotiations, to the effect that "the term 'as is' as used in the contract, was, to his understanding and belief, to apply only to that unfinished portion of the house, and not to the house as a whole." Although parol evidence is admissible to explain ambiguous language in a contract, it is not admissible to create an ambiguity where none exists. Thus, even assuming arguendo that the understanding of the real estate agent as to the intention of the parties might otherwise have any probative value on that issue, it could not be used to contradict or vary the clear language of the contract. See generally Andrews v. Skinner, 158 Ga.App. 229, 279 S.E.2d 523 (1981), Ricketson v. Metts, 173 Ga.App. 606, 327 S.E.2d 570 (1985).
2. We agree, however, with the appellants' contention that material issues of fact remain with regard to the fraud claim, based on the "passive concealment" exception to the rule of caveat emptor, as set forth in Wilhite v. Mays, 239 Ga. 31, 235 S.E.2d 532 (1977), affirming 140 Ga.App. 816(3), 232 S.E.2d 141 (1976). See also Worthey v. Holmes, 249 Ga. 104(2), 287 S.E.2d 9 (1982). "That exception places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect [his] decision." Wilhite v. Mays, supra, 140...
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