274 N.W.2d 362 (Iowa 1979), 60147, Wambsgans v. Price

• Docket Nº: 60147.
• Citation: 274 N.W.2d 362
• Party Name: Charles WAMBSGANS, Sr. and Virginia Wambsgans, Appellants, v. James PRICE, Darlene Price, Fred Mahr, Knapp Real Estate Sales, Inc., Des Moines Savings & Loan Association, Inc., Gains Finance Company, Inc., and Iowa Securities Company, Appellees.
• Case Date: January 24, 1979
• Court: Supreme Court of Iowa

Page 362

274 N.W.2d 362 (Iowa 1979)

Charles WAMBSGANS, Sr. and Virginia Wambsgans, Appellants,

v.

James PRICE, Darlene Price, Fred Mahr, Knapp Real Estate Sales, Inc., Des Moines Savings & Loan Association, Inc., Gains Finance Company, Inc., and Iowa Securities Company, Appellees.

No. 60147.

Supreme Court of Iowa.

January 24, 1979

Page 363

Frank G. Wieslander, P. C., Altoona, for appellants.

Michael E. Runyon, Des Moines, for appellees.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK and McGIVERIN, JJ.

LeGRAND, Justice.

This action was brought by Charles Wambsgans, Sr., and his wife, Virginia, on both breach of contract and tort theories of liability arising out of a listing agreement for the sale of real estate. The case was dismissed as to all the named defendants except Fred Mahr and Knapp Real Estate Sales, Inc., against whom the jury returned a verdict for $43,400.00. Plaintiffs appeal from a trial court order granting a new trial. We affirm.

Defendants' motion for new trial was sustained on two grounds: first, because of an error in Instruction 18 concerning allowance of damages for mental anguish, and secondly, because the verdict is not sustained by sufficient evidence and is "so excessive it appears to have been influenced by passion and prejudice." We do not reach the second ground because we hold defendants are entitled to a new trial on the first.

Page 364

Before discussing our reasons for reaching this result, we believe a recitation of background facts will be helpful. We set these out as they might have been found by the jury, fully aware that there was evidentiary dispute as to many of them.

Plaintiffs owned the real estate since 1951. In 1959 or 1960, Charles suffered a serious illness which left him unable to carry on his usual occupation. After some rehabilitation, he borrowed money by placing a second mortgage on his home in order to secure funds to set himself up in the upholstery business, a project which apparently did not succeed.

In 1968, plaintiffs rented the house to their son, who lived there until 1971, when plaintiffs decided to sell the property. They listed it with Mahr, who represented Knapp Real Estate Sales, Inc., thus setting in motion the series of events which ultimately brought them here.

Almost from the start, Mahr seems to have been inattentive to this property. It was listed for $12,500.00. After two months he submitted an offer to purchase from James and Darlene Price for $12,000.00, which plaintiffs signed. Although they thought the property was to be sold in its "as is" condition, they soon discovered they would be compelled to spend $1,500.00...