Orlando v. Berkeley

SHOEMAKER, Acting P. J.

This is an appeal by plaintiff Joseph Orlando from a judgment in favor of defendants Lucille and Walter Berkeley, entered upon the granting of defendants’ motion for summary judgment.

The complaint alleges that on May 19, 1961, plaintiff entered into a written contract to purchase a home property from defendants for the agreed consideration of $15,500; that plaintiff made the purchase in reliance on defendants’ representations that the house was in good condition and fit for occupancy; that defendants well knew that these representations were in fact untrue in that a great portion of the house was termite ridden and decayed by damp rot; that defendants concealed this fact from plaintiff and induced him, by means of false representations, to enter into a contract of sale; that plaintiff did not discover the defective condition of the house until a reasonable time after he had taken possession of the property; that he would never have purchased the property had he known of its true condition; that the reasonable cost of repairing the house was $6,000.

Defendants answered, denying that they had been guilty of fraud and further asserting, as a separate affirmative defense, that the deposit receipt agreement entered into by the parties expressly provided that “Buyer agrees to waive termite clearance and to absolve seller of any warranty, accepting house

AS IS.”

A copy of the deposit receipt agreement, dated May 19, 1961, was incorporated by reference into the answer.

Defendants subsequently moved for summary judgment, filing in support thereof the affidavit of defendant Walter Berkeley. This affidavit (which purports to have been made on behalf of both the affiant and his wife, Lucille Berkeley) avers that neither defendant ever met, saw or spoke to plaintiff; that they made no oral representations to him; and that the only representations made were those set forth in the deposit receipt agreement of May 19,1961.

In opposition thereto, plaintiff filed a declaration under penalty of perjury to the effect that he had not agreed to waive termite clearance, to absolve the seller of any war

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ranty, or to accept the house “as is”; that the notations in the contract pertaining to these matters were added by the broker after plaintiff had signed the contract; that plaintiff never approved, authorized or ratified these notations; that there was no delivery of the portion of the contract bearing these notations.