In Georgia no distinction is made between the sale of new and used property. The doctrine of "caveat emptor” applies; agreements for the construction of a house to be placed on the property at the time of purchase are merged in the deed unless expressly exempted therefrom or unless they come under the collateral agreement theory, where the deed contains no express warranty of suitability for the use intended of structures placed thereon, with certain exceptions relating to fraud and misrepresentation not here applicable. Dooly v. Berkner, 113 Ga. App. 162 (147 SE2d 685); Tison v. Eskew, 114 Ga. App. 550 (151 SE2d 901); Whiten v. Orr Constr. Co., 109 Ga. App. 267 (136 SE2d 136). No cause of action under existing Georgia law is set out in the first count against either of the defendants.
Count 2 is against John McDonald only as a result of a negligent breach of his contract of construction with the plaintiff. Since McDonald was not a builder-owner or builder-vendor, caveat emptor does not apply. (In fact, this defendant successfully objected to the introduction of any evidence which might have shown that Mrs. McDonald was not the true owner-vendor or that the builder had any personal interest in the real estate). He was, therefore, suable for his negligence in performing the contract because in failing to follow building code standards he violated a private right of the plaintiff, and to elect to sue in tort rather than on contract. Rawls Bros. Co. v. Paul, 115 Ga. App. 731 (1) (155 SE2d 819); Frank Graham Co., v. Graham, 90 Ga. App. 840 (1) (84 SE2d 579). There being substantial testimony that the fire*511place was not installed in a workmanlike manner or in accordance with applicable fire ordinance requirements, and that this was the proximate cause of the damage, it was error to direct a verdict in favor of the contractor under Count 2 of the petition.
3. Apparently the trial judge felt that evidence showing the plaintiff had lived in the house for a period of about three years precluded his recovery as a matter of law. It might well do so as a matter of fact. "That the employer in a building contract, on the retirement of the builders, recognized the contract as complied with, he not having made then nor until sometime afterwards any suggestion to the contrary, is pertinent to the question of whether the contract was in fact complied with; and such recognition need not be express, but may be implied from the circumstances.” Porter v. Wilder & Son, 62 Ga. 520, 526. The statute of limitation, however, begins to run, as stated in Hunt v. Star Photo Finishing Co., 115 Ga. App. 1, 5 (153 SE2d 602), "when the negligent acts were committed resulting in damage to the plaintiff . . . , the owner, and not when a portion of the building collapsed.” Since this action was brought within four years of the building of the chimney, and since the defect was latent and not discoverable until the fire, we are satisfied that a jury question was raised on this point.
The trial court properly directed a verdict in favor of the defendant vendor, Heide McDonald, but erred in removing Count 2, based on negligent construction by the defendant contractor, John McDonald, from jury determination.
Judgment affirmed in part; reversed in part.
Bell, C. J., concurs. Pannell, J., concurs in the judgment only. Deen, J., concurs specially.