Leavens v. Sharp

YORK, P. J.

This is an action for rescission of a contract for the purchase of a parcel of real property and the return of the purchase price, on the ground that the agent of the sellers made material misrepresentations of fact to the buyers which the latter relied upon to their damage.

Said misrepresentations are alleged to have been made as to the location of a boundary line of the lot by defendant Haney, a licensed real estate broker, who negotiated the sale. Defendant William H. Abel, also a licensed real estate broker operating under the name of Beverly Crest Realty Company, had an exclusive contract with defendants Henry T. Sharp and Jean A. Sharp for the sale of their undivided one-half interest in the property in question, and acted for his wife, Hope Y. Abel, as to her undivided one-half interest in the same piece of property. Defendant Abel also had an agreement whereby he had contracted to divide commissions with defendant Haney on any sales made by the latter.

The purchase price of the lot herein was $2,500, $250 of which was paid March 4, 1941, through Beverly Crest Realty Company, and the balance of $2,250 was paid through Security-First National Bank, as escrow agent for the sellers, said bank being authorized by defendants Sharp and Hope Y. Abel to act upon any instruction given to it by defendant William H. Abel.

The record herein discloses that under an agreement dated October 7, 1937, between defendants Sharp and defendant William H. Abel, reciting that the Sharps had purchased a

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tract of land known as the Stack Ranch (which included the lot here in question) by paying $5,000 cash and giving a note for $30,000 secured by a trust deed,—said William H. Abel acquired an undivided one-half interest in the said ranch by paying to the Sharps the sum of $2,937.50 and agreeing to assume a joint obligation to pay the said promissory note and one-half of all the expenses incurred in connection with the sale of the property in parcels of one acre or more. In conjunction with this agreement, a contract was executed by which said Abel was to act as broker for the Sharps in the sale of the property.

Under date of February 24, 1941, the Sharps and William H. Abel conveyed an undivided one-half interest in the Stack Ranch to Henry T. Sharp and Jean A. Sharp, and an undivided one-half interest therein to Hope Y. Abel. The lot here involved was conveyed to plaintiffs by Henry T. Sharp, Jean A. Sharp and Hope Y. Abel by deed dated March 5, 1941. In April of 1941, plaintiffs discovered the discrepancy relating to the boundary line of the lot purchased by them and on July 25, 1941, they commenced the instant action. On motion of counsel for David Haney, the action was dismissed as to him and plaintiffs elected to proceed to trial on the theory of rescission of contract rather than for damages.