" "[T]he delivery and acceptance of an executed deed is considered, prima facie, to merge or supersede the provisions of an antecedent contract which imposes obligations upon the vendor." Miles v. Mackle Bros., Div. DeltonaCorp., 73 Wis. 2d 84, 87-88, 242 N.W.2d 247, 250 (1976). The merger doctrine is limited to promises that concern the title, possession, and quantity of the property conveyed because those promises are not "collateral" to the deed.
When a contract of sale precedes a deed, and there is an inconsistency, the deed governs. Miles v. Mackle Bros., Division Deltona Corp., 73 Wis.2d 84, 242 N.W.2d 247, 249–50 (1976) (This rule is called, unhelpfully, “merger.”) For it's the deed that is going to be recorded and provide notice to subsequent purchasers or lienors.
As we have explained: See also Miles v. Mackle Bros., Division Deltona Corp., 73 Wis. 2d 84, 89, 242 N.W.2d 247 (1976) (concluding that the plaintiffs could have refused to accept the deed); Clifford v. City of Hartford, 204 Wis. 217, 220, 235 N.W. 407 (1931) (concluding that purchase "would not and could not be consummated until and unless the intention [to transfer title] was followed up by acceptance of a deed"). [A] delivery by the donor to a third person, for the use of the donee, and an acceptance by the latter, are two very different things.
We agree with the Manskes that the terms of the deed superseded the provisions of the purchase contract on which the Bank relies. Under the doctrine of merger, the terms of a purchase contract do not survive the deed, but rather, the deed supersedes those terms, except when the terms in the purchase contract are "collateral" to the functions of the deed. Miles v. Mackle Bros., Div. DeltonaCorp., 73 Wis.2d 84, 87-88, 242 N.W.2d 247, 250 (1976). Collateral provisions "are of such a nature as to permit an inference that the parties did not intend to extinguish them in the deed.
This would constitute fraudulent misrepresentation and thus wrongful conduct. See Miles v. Mackle Bros., 73 Wis. 2d 84, 89 (1976) (defining the elements of a fraudulent misrepresentation claim as (1) a false representation (2) made for the purpose of inducing the other to act (3) on which the other relies). Thus, there are fact questions about whether Kopietzki is entitled to the competition privilege defense.
The plaintiff has the burden of proving that the defendant made misrepresentations which were material or intentional and that such statements were relied on by the plaintiff by clear, satisfactory and convincing evidence. See Miles v. Mackle Bros., Division Deltona Corp., 73 Wis.2d 84, 89, 242 N.W.2d 247 (1976); Eiden v. Hovde, 260 Wis. 573, 577, 51 N.W.2d 531 (1952). There is ample evidence in the record demonstrating that Mr. Schley made numerous false statements concerning his activities over the 1995 Memorial Day weekend, and in particular, the early morning hours of May 28, 1995.
Not only must the plaintiff show the existence of all three elements, he must also prove each element by clear and convincing evidence. Mack v. Earle M. Jorgensen Co., 467 F.2d 1177, 1179 (7th Cir. 1972); Morgan v. InterContinental Trading Corp., 232 F. Supp. 444, 450 (E.D.Wis. 1964); Miles v. Mackel Bros. Div. Deltona Corp., 73 Wis.2d 84, 89, 242 N.W.2d 247 (1976). A statement is fraudulent if made with knowledge of its falsity or in reckless disregard of its truth or falsity.
Caparrelli v. Rolling Greens, Inc., 39 N.J. 585, 190 A.2d 369 (1963); Kuzemchak v. Pitchford, 78 N.M. 378, 431 P.2d 756 (N.M. 1967); Yaksich v. Relocation Realty Service Corp., 89 Misc.2d 410, 391 N.Y.S.2d 822 (1977); Biggers v. Evangelist, 71 N.C. App. 35, 321 S.E.2d 524 (1984); Medeiros v. Guardian Title Guar. Agcy., Inc., 57 Ohio App.2d 257, 387 N.E.2d 644 (1978); Griffin v. Bredouw, 420 P.2d 546 (Okla. 1966); Wiley v. Berg, 282 Or. 9, 578 P.2d 384 (1978); Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 246 A.2d 365 (1968); Nelson v. Gregory County, 323 N.W.2d 139 (S.D. 1982); Haynes v. Morton, 32 Tenn. App. 251, 222 S.W.2d 389 (1949); Harris v. Rowe, 593 S.W.2d 303 (Tex. 1980); Stubbs v. Hemmert, 567 P.2d 168 (Utah 1977); Chimney Hill Owners' Ass'n, Inc. v. Atnignani, 136 Vt. 446, 392 A.2d 423 (1978); Miller v. Reynolds, 216 Va. 852, 223 S.E.2d 883 (1976); Black v. Evergreen Land Developers, Inc., 75 Wn.2d 241, 450 P.2d 470 (1969); Miles v. Mackle Bros., Div. Deltona Corp., 73 Wis.2d 84, 242 N.W.2d 247 (1976). Eleven (11) jurisdictions, including Mississippi, have not addressed the issue of agreements collateral to or independent of the subsequent deed. Three (3) jurisdictions have held that all agreements are merged into the deed.