dissenting. I dissent from the opinion and judgment of the majority in this case, the basis of my dissent being fundamentally the same as that set forth in my dissent in the recent case of Knight v. Hedden, 112 Ga. App. 847 (146 SE2d 556), cited and relied upon by the majority. I think that case is distinguishable on its facts from this case, and that that case is not authority for the ruling made in the majority opinion in this case. Involved in this case was the promise of the seller contained in the preliminary sale contract to do certain work and perforin certain services in connection with the completion of a house which apparently was under construction at the time the sale contract was entered into. With the possible exception of item 4 (i), respecting checking the chimney for leakage and repairs, every one of the items sued for related to things which the buyer could have easily ascertained had not been done prior to closing the sale and accepting the deed. None of the things set forth in the petition as not having been performed by the seller were in and of themselves of such a character that they necessarily could not have been performed within the 30- days allowed under the sale contract for closing. This fact clearly distinguishes this case from Kollen v. High Point Forest, Inc., 104 Ga. App. 713 (123 SE2d 10), where the seller guaranteed a dry basement, for one year, and it appeared that the sale was contemplated by the parties to be consummated within a few days, and was in fact consummated within 12 days after the execution of the sale contract. Similar facts in McKee v. Cartledge, 79 Ga. App. 629 (54 SE2d 665), also distinguish that case from this one and render the rule enunciated there and followed in the Kollen case inapplicable here. The ruling *597in the Rollen case clearly points up the distinction between cases of that kind and this case. That case clearly laid down the rule that the bare allegation that it was the intention of the parties that the special stipulation contained in the sale contract would survive the execution of the deed and not merge therein is not sufficient to withstand the attack of a general demurrer, unless supported by some fact alleged in the petition or appearing from the contract itself which would authorize such a conclusion. That proposition is authority for the view that I take of this case, and I, therefore, do not agree with the statement contained in the majority opinion that the bare allegation of such intent unsupported by any facts is not a conclusion but is an allegation of an ultimate fact. To permit parties to amend in this fashion a contract for the sale of realty which furnishes no key authorizing such a conclusion is, to my mind, a serious weakening of the sanctity o.f solemnly written agreements.
I think this case clearly falls within the well established rule set forth in the older cases decided by both this court and the Supreme Court, such as Keiley v. Citizens Savings Bank &c., 173 Ga. 11 (159 SE 527); Smith v. White, 75 Ga. App. 303, 306 (43 SE2d 275); and Johnson v. Young, 79 Ga. App. 276, 282 (2) (53 SE2d 559). Furthermore, the contract in this case contained a provision that “such papers as may be. legally necessary to carry out the terms of the contract” will be executed upon the closing of the sale. As was, in effect, held by this court in Postell v. Hearn, 104 Ga. App. 765, 768 (123 SE2d 13), a case written by Judge Jordan, who also wrote the Rollen case (decided at the same term), where a contract for the sale of realty contains a term such as above quoted, and where the seller subsequently executes a deed containing no reference to any preliminary agreements and the buyer accepts it, and where no other agreement renewing the preliminary agreements is entered into contemporaneously therewith, the buyer will be held to have waived the terms of such preliminary agreements not specifically referred to in the deed, and in such cases the recognized exception to the general rule of merger, as applied in the Rollen and McRee cases, does not apply. I think the trial judge was right in sustaining the general demurrer and in dismissing the petition in this case.
*598I am authorized to state that Judges Eberhardt and Pannell concur in this dissent.