Solomon v. Birger

*644 Brown, J.

(dissenting). My quarrel is with part 2 of the majority opinion. I think the majority unwarrantably rewrites an agreement arrived at between equal bargaining parties. Unlike the majority, it is not difficult for me “to imagine that an agreement designed by a real estate association would contain a twentyryear warranty about a fact of which the seller is likely to have imperfect knowledge, i.e., whether his structure, at the time of sale, conforms in every respect with the building code.” A simple disclaimer that no zoning or building code violations have been noticed or cited by local public officials would more than adequately insulate these defendants and all such similarly situated sellers. I would think that if any group were aware of the problem, it certainly would be the preeminent real estate association in the area.

But more to the point. The plaintiffs assert that the warranty in the purchase and sale agreement of building code compliance was violated because the house had been constructed on uncompacted landfill contrary to the local building code. I think that the instant case is controlled in all material respects by McMahon v. M&D Builders, Inc., 360 Mass. 54, 59-60 (1971), which held that agreements which are not essential to the promise to convey do not necessarily merge with the deed, notwithstanding the existence of a merger clause in the accepted deed.

Notwithstanding the cogent analysis of the majority, I am of opinion that the present posture of the record does not lend itself to an immediate resolution of the merits, because the defendants’ claims are, for the most part, inappropriate for determination in a summary judgment proceeding. See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The defendants admitted, pursuant to Mass.R.Civ.P. 36(a), 365 Mass. 795 (1974), that the purchase and sale agreement in the record is authentic and that it is a contract under seal. In their answer, they “admitted on information and belief’ the allegation in the complaint pertaining to building code problems. 1 Section 9 of *645 the purchase and sale agreement appears to warrant that the building is in compliance with applicable local building codes. 2

The buyers have demonstrated a prima facie claim for breach of a sealed instrument, and, as such, the claim is not time-barred. See G. L. c. 260, § 1. The buyers’ claim would be barred only if (1) the warranty in issue was merged into the deed and thereby extinguished, superseded, or waived, or (2) the gravamen of the complaint is deemed exclusively to be fraud or some related tort which would be barred by the three-year statute of limitations, G. L. c. 260, § 2A.

As a general rule the contractual duties of a seller of land are discharged by the buyer’s acceptance of a deed. However, “there is an exception to the effect that promises in the original agreement which are additional or collateral to the main promise to convey the land and are not inconsistent with the deed as given are not necessarily merged in the deed, but may survive it and be enforced after the deed is given.” McMahon v. M & D Builders, Inc., 360 Mass. at 59 , quoting from Pybus v. Grasso, 317 Mass. 716, 717 (1945). See also Rouse v. Brooks, 66 Ill. App.3d 107, 110 (1978). In McMahon , the buyers sought to rescind a transaction because of false oral representations as to the quality of a nearly completed new house. The standard form purchase and sale agreement contained a provision that “[t]he acceptance of a deed by the Buyer shall be deemed to be a full performance and discharge hereof’ (emphasis deleted). Ibid. This language was held “applicable only to the title . . . which was to be conveyed, and ... the plaintiffs’ acceptance of the deed operated as a merger or waiver only to the extent of precluding any claim that the title . . . did not satisfy the requirements of the agreement.” Id. at 60 . 3

*646 Promises concerning title and possession are essential to any conveyance, and consequently they are merged into the accepted deed. Id. at 59-60 . On the other hand, promises that do not concern title or possession are collateral to the main agreement to convey and may be deemed not to have been merged into the deed. 4 Ibid. The warranty language expressed in § 9 of the purchase and sale agreement does not relate to title or possession — that is, it neither clouds the title nor prevents possession of the property. The warranty concerns the question of habitability. A promise that a house is suitable for habitation has been held not to merge into the deed. Id. at 57, 60.

Viewing the allegations in the complaint in conjunction with the express warranty language in § 9 of the purchase and sale agreement it becomes clear that the defendants were not entitled to summary judgment as matter of law. 5 The verified complaint *647 alleged that during the negotiation process and at the time of the acquisition of the premises the defendants made “express and implied warranties” to the effect that the house on the premises “was safe and fit for habitation and was free of major latent structural defects.” Section 9 of the agreement would qualify as an express warranty made at the time of the acquisition of the property or during the period of negotiation. As the defendants’ motion for summary judgment was not supported by affidavits, the requirements of Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974), do not come into play and the plaintiffs’ verified complaint can stand against the other documents filed in support of the motion. See Enterprise Music & Games, Inc. v. McCarthy, 9 Mass. App. Ct. 906 (1980).

The sellers’ assertion that the local building code is not in evidence misses the point in this summary judgment proceeding. The sellers’ contention that the building code issue was not raised below is specious; the code problem surfaces throughout the record. At the summary judgment stage the burden was on the defendants to establish that there was no issue of a building code violation.

I would reverse the judgment, vacate the order denying the plaintiffs’ motion for partial summary judgment with regard to the defendants’ statute of limitations contention, and remand the case to the Superior Court to stand for further proceedings.

The defendants merely admitted that the building permit had been violated. Although it may be argued that it is not permissible to infer from an *645 allegation of a violation of the building permit that the building code has not been complied with, the defendants have not controverted such a proposition or made it appear that there is no genuine issue for trial.

The sellers do not take issue with the assertion that this clause exists.

McMahon followed Lipson v. Southgate Park Corp., 345 Mass. 621, 625-626 (1963), which found no merger or waiver where the contract of sale expressly provided for the constmction of a new house in conformity with certain specifications, and Holihan v. Rabenius Builders, Inc., 355 *646 Mass. 639, 641-643 (1969), where, on facts substantially similar to those in Lipson , the same reasoning was applied and the same result was reached. Contrast Pybusv. Grasso, 317 Mass. at 717-719 , where the merger doctrine was applied to a sale in which the buyer received a smaller lot than contracted for because “to hold the defendant for the missing land would be inconsistent with the deed, which described only lot 37.” Similarly, Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 440-442 (1975), applied the merger doctrine to bar a contract action where the property conveyed was encumbered by a lease for a longer period than specified in the purchase and sale agreement.

That a house was warranted to have been constructed with building materials of only the highest quality is another example of a promise which may not necessarily be merged into the accepted deed.

Although the code violation was brought to the court’s attention, it does not appear that the plaintiffs ever specifically argued that the noncompliance with the code was a breach of an express warranty, except to the extent that such an argument was implicit in their contention that the defendants had not complied with the express and implied warranties during the period of negotiations and at the time of purchase. This, however, does not affect our resolution of this case. A judge hearing a summary judgment motion may consider the entire record properly before him, including parts not specifically referred to by either of the parties. S ee Higgenbotham v. Ochsner Foundation Hosp., 607 F.2d 653, 656-657 (5th Cir. 1979), where the court noted that the counsel’s failure to bring directly to the judge’s attention a deposition filed in the record did not mean that the judge could properly ignore the deposition in ruling on a summary judgment motion. In short, *647 rule 56 does not distinguish between material merely on file and that singled out by counsel for special attention. Contrast S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477, 478-479 & n.2 (1980).