This is аn action for breach of contract to build a house for the plaintiffs. There are two counts for *640 the same cause of action, the first against the individual defendant, and the second against the corporate defendant. The District Court judge found for the defendants, the Appellate Division dismissed a report, and the plaintiffs appealed.
Much difficulty arises out of the form of the contract. The house was to be built on land owned by the corporate defendant, but this undertaking was not contained in a completed writing. The only writing in contrаct form was on a printed form entitled “Real Estate Agreement,” dated July 23, 1963 (exhibit 1), between the corporate defendant and the plаintiffs, who are described as “The Misses Mary E. and Loyola C. Holihan.” This is the usual buy and sell agreement sold by stationers, and calls only for the purchase and sale of “a certain estate situated in Lot 1 Argilla Road, Andover . . . containing 31,000 square feet, Plan entitled ‘Plan of Land in Andover, Mass., аs Subdivided by Robert 0. Rabenius on August, 1962 . . . The premises were to be conveyed on or before September 15, 1963, unless some other time should be mutually agreed. The purchase price was $29,500 1 of which $3,072 was paid as a deposit, and $27,653 was to be paid on delivery of the deed. This price must have included the cost of the house. The “Real Estate Agreement” was signed “Rabenius Bldrs., Inc. Robert O. Rabenius (Pres.) Loyola C. Holihan Mary E. Holihan.”
The actual deed signed “Rabenius Builders, Inc. by Robert O. Rabenius, . . . President,” is dated and acknowledged on November 27, 1963, and recorded on December 23, 1963. There was no written extension.
The trial judge made these findings. The corporate defendant was a one-man corporаtion. The entire negotiations with the plaintiffs were conducted by the individual defendant. A few days after the execution of exhibit 1 he deliverеd to the plaintiffs a document entitled “specifications” (exhibit 2). These were his “standard specifications, as modified for this particular Holihan contract.” Exhibit 2 *641 was not a part of or incorporated in exhibit 1. Certain extras were requested by the plaintiffs as the work prоgressed and some were included in the closing statement which was paid by the plaintiffs when title passed. At the time of the transfer of title the рlaintiffs paid a total sum of $31,960.35. They first occupied the premises on or about December 10, 1963. Certain work was not completed at thе time when title passed. This was known to all parties. After title passed the plaintiffs got in touch with the “defendants,” who returned to the premises to see what else needed to be done. A controversy occurred, and “nothing further was ever done by the defendants.” Finding numbered 12 was: “The Court finds, that despite any oral agreements to the contrary that might have been made between the parties between the date оf the execution of Exhibit #L, and the closing transaction, that the fact of acceptance of the deed together with taking pоssession of the premises, constitutes a waiver of all rights by the plaintiffs pursuant to the provisions of Exhibit #1.”
The trial judge granted requests of the defendants which were disposed of by the Appellate Division on the basis of finding numbered 12 (mistakenly described in their opinion as finding numbered 11). This so called finding was a ruling and was erroneous. The plaintiffs’ appeal brings it here.
Burns
v.
Winchell,
The defendants, we infer, at first intended to withhold delivery of the deed until the completion of the work on the building. The desire of the plaintiffs for Christmаs occupancy led to the conveyance of the land without that work being fully performed. When the controversy occurred, аp *642 parently on account of a further bill for extras, the defendants fell back on the doctrine of merger or waiver by acceptance of the deed.
The latter rule applies to defects in the conveyance itself, such as failure to convey all the area contracted for as well as to defects in the title.
Pybus
v.
Grasso,
The present case falls within the authority of
Lipson
v.
Southgate Park Corp.
Authoritiеs supporting our conclusion that the provisions of the building agreement were not merged in the accepted
*643
deed are found in Annоtation, 84 A. L. R. 1008, 1017, and Annotation, 38 A. L. R. 2d 1310, 1325. These include
Stevens
v.
Milestone, 190
Md. 61, 65-66,
Allen
v.
Currier Lumber Co.
The statement in the purchase and sale agreement (exhibit 1) that “the acceptancе of a deed and possession . . . shall be deemed a full performance and discharge hereof” does not change this result. It cаn have no effect on the building contract. We agree with the finding or ruling of the District Court judge that the specifications (exhibit 2) were no pаrt of the purchase and sale agreement (exhibit 1).
The order of the Appellate Division is reversed. The finding of the trial court for the defendants is vacated. The case is to stand for trial in the District Court.
So ordered.
Notes
This total is not the sum of the deposit and the amount to be paid on delivery of the deed.