202 S.W.2d 439 | Ky. Ct. App. | 1947
Reversing.
The action was instituted by appellants, George E. and Virgie M. Adams, against appellees, Fada Realty Company, Evola Realty Company, and Archer-Meder Company, to recover damages they suffered as a result of being induced to purchase a house and lot in Louisville by fraudulent misrepresentations as to the quality of material used and work performed in its construction. The answer consisted of a general denial of all the allegations of the petition. The first witness to be introduced was appellant George E. Adams. Counsel for appellees were permitted to conduct a voir dire examination before he proceeded with his direct testimony. *196 This examination disclosed that he had made an offer in writing to appellees to purchase the house in question, which offer was accepted, and at the time of the purchase of the property appellees delivered to him a deed of conveyance which was accepted by him and his wife. Upon this showing the Court refused to permit parol evidence to be introduced concerning any representation made to him as purchaser of the property which was not incorporated into the written contract of purchase or the deed. This ruling was made by the Court upon the theory that parol evidence is incompetent to vary the terms of a written contract. However, Mr. Adams was permitted to testify as to the misrepresentations and the faulty construction of and inferior materials used in the construction of the house for the purpose of incorporating this testimony into an avowal to perfect the record. This testimony shows facts from which a jury could conclude that the agent of appellees represented that the property was constructed of first class materials, and that the work of construction was performed in a workmanlike manner. It likewise disclosed facts from which the jury could conclude that inferior materials were used, and that the work was not performed in a workmanlike manner. It is unnecessary, for the purpose of this opinion, to recite the testimony in detail.
No rule of evidence has been more firmly established than the one appellees invoke, viz.: Parol testimony may not be introduced to vary the terms of a written contract. But we think the rule is not applicable to a case of this character. The cause of action stated in the petition is not one for damages for breach of a contract or for breach of warranty contained in a contract. It is an action in deceit for false and fraudulent representations made by the vendor to induce the vendee to purchase the property. When negotiations for the purchase of real estate are consummated by the execution and delivery of a deed, the transaction, so far as it rests in contract, is merged in the writing. But false and fraudulent representations made by the vendor to induce the vendee to enter into the contract are not merged in the contract. Sellars et al. v. Adams et al.,
The Court further held in that case that the introduction of parol evidence in respect to a matter inducing the transaction does not violate the rule that such evidence may not be introduced to vary the terms of a contract. But it is insisted that the cases above cited are not in point, since in none of them did the parties enter into a written contract to purchase prior to execution and delivery of the deed; but the rule applies whether the contract is one to purchase or one of purchase if the action is for damages growing out of fraud in the inducement. We are of the opinion the Court erred in refusing to permit appellants to introduce parol evidence in support of the allegations of their petition.
The judgment is reversed, with directions that it be set aside, and that appellants be granted a new trial to be conducted in conformity with this opinion.