Erickson v. Magill
Citation | 713 P.2d 1182 |
Decision Date | 07 February 1986 |
Docket Number | No. 85-121,85-121 |
Parties | Erick O. ERICKSON and Connie Erickson, Appellants (Plaintiffs), v. Richard MAGILL and Key Real Estate Company, a Wyoming Limited Liability Company, Appellees (Defendants), Scott D. McLennan and Marleen J. McLennan, husband and wife, (Defendants). |
Court | United States State Supreme Court of Wyoming |
Don W. Riske, Cheyenne, for appellants.
Kay Snider Coffman and Bert T. Ahlstrom, Jr., Cheyenne, for appellees.
Before THOMAS, C.J., and ROONEY * BROWN and CARDINE, JJ., and RAPER, J., Retired.
RAPER, Justice, Retired.
A jury returned a verdict finding that defendant Magill (appellee) intentionally interfered with a contract between the plaintiffs Ericksons (appellants) and buyers of real estate (McLennans); that appellee Magill breached a real estate agent's duty to appellants; and that appellants should recover damages in the sum of $25,000 and a statutory penalty in the sum of $7,125, for violation of statutory duties, against appellee Magill and appellee Key Real Estate Company (Key), the owner of Key being the real estate broker for whom appellee Magill was a real estate salesman. A judgment was entered for the total of those amounts less a $5,000 settlement derived by appellants from the McLennans, defendants dismissed from the suit before trial. The trial judge thereafter granted appellees judgment notwithstanding the verdict (JNOV).
On appeal from the JNOV, appellants set out the issues as:
Appellees state the issues to be:
We will affirm.
The McLennans, after a search for a rural-type property, decided that the five acres with residence owned by appellants suited their needs and financial resources. They had just moved to the Cheyenne area and required occupancy a few days after their signed "Offer, Acceptance & Receipt" had been accepted by appellants, since the movers had arrived with their furniture and household goods. Appellants required an additional $10,350 earnest money and rent payment which was deposited in the form of a check, and a preoccupancy lease agreement was executed.
The McLennans immediately moved their furniture in, with much of the smaller household goods being left boxed. After one night of occupancy, December 4-5, 1983, they first stopped payment of the check and then notified appellees that they were extremely unhappy with the house and wanted a contractor to take a look at it. It was explained that even though the electric heat had been turned up, the wind was blowing through a tongue and groove ceiling. The kitchen and living room area could not be kept comfortable, so in order to keep warm they had to go to bed.
There were discussions most of the day of December 5th with appellants and appellees over what could be done about the problem. That evening the McLennans gave appellee Magill a note advising that they would not close the contract until such time as there was an agreement to withhold money from the purchase price to cover the cost of any repairs.
The next morning, December 6th, the McLennans instructed appellee Magill to cancel the note with respect to repairs; they no longer wanted the house under any terms. Another note was prepared by the McLennans and delivered to appellees in which they advised of the inability of the electric heating units to keep the house at a habitable temperature due to the wind blowing through leaks, creating a draft which the heating could not overcome. The McLennans considered this a major defect not disclosed by appellants, and they considered the contract void. 2 It was made clear that they intended to move out of the house as soon as they could find other accommodations.
In that the McLennans settled their differences by payment of $5,000 to appellants, the foregoing summary is prefatory to additional facts pertaining to the remaining claim against appellees.
Appellee Magill handled the sale of the property on behalf of the owners. When the McLennans announced they were refusing to close, Magill and the Key broker discussed the matter at some length with the McLennans, warning them that refusal to proceed constituted a breach of contract and that they could be required to specifically perform the agreement. The McLennans were taken to an attorney where they were informed that they would be sued. Regardless of those warnings, the McLennans were adamant that they were not going to stay in the house any longer than they had to.
Appellees had other listings. Appellee Magill showed the McLennans a property which interested them. The owners accepted an offer prepared and presented to them by appellee Magill. The form of offer contained a provision making the sale "contingent upon final resolution of a dispute involving the purchasers; relative to the property" of appellants.
Appellees were accused of interference with the contract of appellants with the McLennans. The response of appellee Magill in his testimony was that any hope of closing the sale of appellants' property to the McLennans was out of the picture, so there was no question of interference nor any reason to forego selling another property to them. The testimony of Mr. McLennan was that if Key felt it could not find another property and arrange the sale for them, "there were other real estate agents in this town" and "I was not going to close and they [Magill and Key] didn't get a vote in the matter."
and "you can lead a horse to water but you can't make [him] drink."
The trial judge in granting the motion JNOV summed it up in his bench decision:
We agree with the district judge.
Pursuant to Rule 50, W.R.C.P., appropriate motions to dismiss were made by appellees at the end of appellants' evidence and at the close of all the evidence. The trial judge followed the approved practice of denying both and, in...
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