Isaacs v. Cox
| Decision Date | 21 June 1968 |
| Citation | 431 S.W.2d 494 |
| Parties | James H. ISAACS et al., Appellants, v. Jimmie COX et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Harold K. Huddleston, Huddleston & Van Zant, Elizabethtown, for appellants.
Paul M. Lewis, Hatcher & Lewis, Elizabethtown, for appellees.
Appellants, James H. Isaacs and Rosie Isaacs, contracted with appellees, Jimmie Cox and Carolyn Cox, to purchase a house and lot in Hardin County, Kentucky, for $11,500.00. Pursuant to the contract the purchase price was paid, a deed was executed and the Isaacses took possession. They sued the Coxes for a rescission and damages or alternately for damages on the claim that the terms of the contract had been violated and there was fraud and misrepresentation in obtaining it. The Coxes moved that the action be dismissed. The court, apparently treating the motion as one for summary judgment pursuant to CR 56.03, entered a final judgment sustaining that motion. This appeal is from that judgment.
The complaint alleged that there were misrepresentations as to the water system, the construction of the house and that the Coxes represented 'that certain additional work and materials would be provided on the premises after the date of the deed and possession of the premises by the plaintiffs.' It also charged that 'the additional work agreed to and represented by defendants ha(d) not been performed.' It continued, 'By reason of said defects, misrepresentations, and refusal of defendants to perform the agreed work, the actual value of the property conveyed is Five Thousand ($5,000.00) less than the value would have been had said representations been true and correct and said work been performed.'
The contract which was filed pursuant to a motion of appellees, provided in part that:
Depositions of Mr. and Mrs. Isaacs were taken and while there was equivocation as to certain facts there was testimony that some of the work which the contract provided would be done had not been performed. Also these parties deposed that representations later proved false had been made to them although it is not entirely clear from the testimony as to whether the representations were made by the Coxes or by their real estate listing broker and when made.
The trial court apparently construed this case as one based purely on misrepresentation. We do not so conceive it for it is our opinion that it is predicated both on alleged misrepresentation and a failure of performance of some of the terms of the written contract.
The Coxes erroneously claim that any representations made by the real estate broker cannot impose liability on them. The general rule is fully stated in 37 Am.Jur.2d 417, Fraud and Deceit, section 316, wherein it is said:
This rule was approved in McGuffin v. Smith, et al., 215 Ky. 606, 286 S.W. 884 (1926).
Misrepresentations, if any, as to water quality or supply, were material. See cases involving wells or other...
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