Rossi v. Percifield

• Decision Date: 04 November 1974
• Docket Number: No. 4324,4324
• Citation: Rossi v. Percifield, 527 P.2d 819 (Wyo. 1974)
• Parties: Reno ROSSI and Harriett Rossi, Appellants (Plaintiffs below), v. John PERCIFIELD et al., Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 819

527 P.2d 819

Reno ROSSI and Harriett Rossi, Appellants (Plaintiffs below), v.John PERCIFIELD et al., Appellees (Defendants below).

No. 4324.

Supreme Court of Wyoming.

Nov. 4, 1974.

William G. Watt and John M. Daly of Dunlap & Watt, Gillette, for appellants.

David F. Palmerlee of Redle, Yonkee & Arney, Sheridan, for appellees.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.

McEWAN, Justice delivered the opinion of the court.

This was an action upon a written agreement for the sale of a grocery store by plaintiffs, as sellers, against the defendants Percifields, as buyers, and defendants Pittsenbargers, as assignees.¹

Default judgment was entered in favor of the sellers and against the defendants Pittsenbargers, from which no appeal was taken.Subsequently a judgment was filed in which the suit against the defendants Percifields was dismissed, from which this appeal was taken.This appeal then affects only the sellers and the buyers.The sellers and buyer John Percifield were represented by counsel and briefs were filed for them.The defendantJoAnne Percifield, now JoAnne Percifield Moser, was not represented by counsel and no brief was filed by her or upon her behalf.

In April of 1971the plaintiffs as sellers entered into an agreement with the defendants Percifields as buyers, wherein the grocery store in Gillette owned and operated by the sellers was sold to the buyers in consideration of the sum of $15,000.The buyers agreed to and did pay the sellers the sum of $5,000 upon the signing of the agreement.The contract further provided that the buyers were to execute a promissory note in the amount of $10,000 due and payable in five years with interest at 8% per annum, payable every six months commencing October 23, 1971.It also contained a provision that the agreement and the business and property which pertained to the agreement could not be sold or assigned without the consent of the sellers.

On September 8, 1971, the sellers, the buyers, and the assignees executed an 'Assignment of Agreement for Sale of Grocery Store,' which provided:

'WHEREAS Percifield has agreed to assign said Agreement to Pittsenbarger and Pittsenbarger has agreed to assume the obligations of said agreement and to take over the Grocery Store and all rights, title, interest, and liability, pertaining to the said agreement; and whereas Rossi has consented to this assignment on conditions that both Percifield and Pittsenbarger shall be liable for the obligations of said agreement * * *.'(Emphasis supplied.)

The assignees signed a $10,000 note payable to the...