King v. H. J. McNeel, Inc.

• Decision Date: 22 October 1971
• Docket Number: No. 10273,10273
• Citation: King v. H. J. McNeel, Inc., 94 Idaho 444, 489 P.2d 1324 (Idaho 1971)
• Parties: James C. KING and Agnes C. King, husband and wife, Plaintiffs-Respondents, v. H. J. McNEEL, INC., an Idaho corporation et al., Defendants, and Sundowner, Inc., an Idaho corporation, Defendnat-Appellant.
• Court: Idaho Supreme Court

Page 1324

489 P.2d 1324

94 Idaho 444

James C. KING and Agnes C. King, husband and wife, Plaintiffs-Respondents, v.H. J. McNEEL, INC., an Idaho corporation et al., Defendants andSundowner, Inc., an Idaho corporation, Defendnat-Appellant.

No. 10273.

Supreme Court of Idaho.

Oct. 22, 1971.

Alexanderson, Davis & Rainey, Caldwell, and Langroise, Clark, Sullivan & Smylie, Boise, for appellant.

Gigray, Downen & Morgan, Caldwell, for respondents.

SHEPARD, Justice.

This is an appeal from a judgment for plaintiffs in an action upon a contract for the purchase and sale of a motel.Plaintiffs commenced the action, asking for reformation of the contract, or in the alternative, damages for misrepresentation of the land area and other items involved in the purchase of the motel.The trial court utilized an advisory jury which returned a verdict for plaintiffs and which was reduced in amount by the trial court.

In 1966 the Bushnells had listed the Sundowner Motel in Caldwell, Idaho for sale with one Wayne Birch, a real estate agent.The Kings having contacted Birch, travelled to Caldwell to view the subject property several times and during those times had various conversations and negotiations with Birch and Robert Bushnell.Thereafter a contract of purchase and sale of the Motel was entered into between the Kings and the Bushnells.

At that time the motel property was bounded upon one side by the H. J. McNeel Lumber Company property and a building located thereon.Attached to and running along the edge of the McNeel lumber building was an ornamental facade designed apparently to add to the attractiveness of the motel property.Between the facade and the motel units was a small frame building, housing certain motel facilities.The motel was served by an asphalt parking lot which extended to within one foot of the ornamental facade.

The controversy between the parties involves the representations of Bushnell and Birch regarding the boundary lines of the property.The Kings alleged that Birch and Bushnell represented that the boundary of the motel property ran along the wall of the McNeel building and that the ornamental mental facade was on the property of and belonged to the Motel.Also involved were representations regarding a small building housing motel equipment and a portion of the parking lot.The Motel property is described in the contract of sale as 'Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9, block 8 * * *.'It is undisputed that the boundary line between lots 9 and 10 runs along the course contended for by Bushnell.Bushnell alleges that he informed the Kings of the true boundary of the motel property as the line between lots 9 and 10, which would exclude from the motel property the ornamental facade, the equipment building and a portion of the parking lot.Bushnell contends he stated that the said facilities would be required to be removed in the near future since he intended to construct another motel on the McNeel Lumber property.

Following the sale of the Motel, Bushnell proceeded to demolish the McNeel building and construct another motel on that property.In connection with that construction, the ornamental facade, the service building and approximately 2 parking spaces were removed.This action was commenced by the plaintiffs, asking for reformation of the contract to include therein an additional 10 ft. strip between the boundary line of lot 9 and the NcNeel building, or in the alternative, for damages from the loss of the above mentioned items, together with the loss of value to the Motel property caused by removal of the ornamental facade.

As aforesaid, a verdict was returned by the advisory jury in favor of the plaintiffs in the amount of $41,800.That amount was reduced by the trial court and judgment was entered in the amount of $29,500, together with costs and attorneys' fees.

Defendant-Appellant makes numerous assignments of error; however, only a portion thereof need be considered since the judgment of the trial court must be reversed.

The principal contention of Defendant-Appellant is that the trial court erred in its instructions to the jury.Defendant-Appellant argues that the trial court erred in submitting a normal agency instruction to the advisory jury rather than specifically delineating the relationship existing between a principal and a real estate broker.Defendant-Appellant contends that Dellwo v. Petersen, 32 Idaho 172, 180 P. 167(1919), andRinger v. Wilkin, 32 Idaho 330, 183 P. 986(1919) set forth the rule that representations by a real estate broker about the property to be sold do not bind the vendor.Those two cases set forth exceptions to the general rule, to-wit: Representations by an agent as to quality or future productivity of the land are not binding upon the principal, nor are such representations binding on the principal when a dual agent was employed equally by both parties.

The misrepresentations alleged by Plaintiffs in the instant case were as to the determination of the boundary and the quantity rather than the quality of the land.Hence, the actual pattern of this...