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Re v. Magness Const. Co.

Superior Court of Delaware, New Castle County

September 30, 1955

John RE, Jr., and Mildred Re, Plaintiffs,
v.
MAGNESS CONSTRUCTION CO., a corporation of the State of Delaware, Defendant.

Action against vendor for breach of construction contract wherein purchasers sought damages for vendor's failure to build house in accordance with plans and specifications. On vendor's motion to dismiss complaint, the Superior Court, Layton, J., held that construction contract providing for sale of property including house, and for building of house in accordance with certain plans and specifications, did not merge with deed upon purchasers' acceptance of deed and was not thereafter void.

Motion denied

Plaintiffs filed a complaint against defendant for breach of a construction contract claiming damages in the sum of $3,000 for defendant's failure to build in accordance with plans and specifications. The Contract of Sale is substantially as follows:

‘ Contract

‘ Wilmington, Del.,

March 19, 1954

‘ Sold this day to John Re, Jr. & Mildred R. Re, his wife or his assigns, the property known as Lot No. 3, Marsh Road, Mayfield, New Castle County, Delaware Sale price includes choice of wallpaper (within $150.00 allowance) Choice of bathroom fixtures and tile, choice of powder room fixtures and tile, choice of kitchen linoleum, lot to be graded, seeded and shrubbed, electric range and garbage disposal, choice of asphalt tile in recreation room, choice of paint on wood paneling in recreation room, and choice of paint on recreation room walls. House to be built according to plans and specifications, on the following terms and conditions of sale:

‘ Purchase Price Sixteen Thousand Six Hundred Fifty ($16,650.00) and no/100 Dollars

‘ One Hundred ($100.00) and no/100 Dollars cash as forfeit money is hereby deposited with Conly, Mills & Rossiter, Inc., [49 Del. 379] Agent, by the Purchaser, to bind the bargain, said money to be considered a part of the purchase price.

‘ Balance of down payment to be made at time of settlement.

‘ Seller agrees that all shades, blinds, screens, storm sash, awnings, and linoleum belonging to Seller and now on the premises shall remain and be included in the purchase price.

‘ Taxes, Water Rent and Rent of Property to be prorated. Title to be good, marketable, fee simple title, clear of all incumbrances except as otherwise stated herein, but subject to all existing restrictions and easements. In case the title is found to be imperfect the forfeit money paid will be refunded. Loss or damage to the said premises by fire, windstorm or other casualty prior to delivery of Deed shall be borne by the Seller.

‘ Deed shall be delivered to the Purchaser, and final settlement completed, on or before April 1, 1954.’

Page 79

The Complaint charges that defendant failed to waterproof the walls and foundations, constructed the driveway improperly and graded the property so as to preclude adequate drainage.

Defendant has filed its motion to dismiss upon the proposition that plaintiffs, having once accepted a Deed to the premises in question, cannot now bring suit upon the Contract of Sale because the latter ...


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