Eanes v. McKnight

251 So. 2d 491
CourtLouisiana Court of Appeal
DecidedJune 30, 1971
DocketNos. 8413, 8414
StatusPublished
Cited by7 cases

This text of 251 So. 2d 491 (Eanes v. McKnight) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eanes v. McKnight, 251 So. 2d 491 (La. Ct. App. 1971).

Opinion

LANDRY, Judge.

All parties to these consolidated actions have appealed judgments which: (1) award plaintiffs, Luther S. Fortenberry and Joy L. Fortenberry (Vendor), damages for alleged breach by defendants, Victor McKnight and Wanda S. McKnight (Purchaser), of a contract to buy and sell a residence; (2) granting plaintiff, Jane Elizabeth Eanes, a real estate broker (Broker), a commission allegedly due by Purchaser, and (3) denying the reconven-tional demand of Mrs. McKnight for damages for pain and anguish allegedly resulting from these reputedly unfounded actions. We reverse the judgments rendered in favor of Vendor and Broker against Purchaser and otherwise affirm.

[493]*493The Fortenberrys seek recovery of $15,-632.80 in damages for alleged losses and attorney’s fees incurred as a result of the McICnight’s failure to purchase subject property. Mrs. Eanes, a real estate broker, seeks recovery of the commission allegedly earned in securing a purchaser pursuant to a listing agreement with the Forten-berrys, together with attorney’s fees incurred in instituting the action to recover the commission. Alternatively, Mrs. Eanes asks judgment against the Fortenberrys pursuant to a listing agreement which states that the seller shall be liable for the realtor’s commission should a proposed sale not be consummated due to the seller’s fault. Defendants reconvened alleging Vendor breached the agreement to buy and sell in that the Vendor failed to produce a termite certificate within the time limit specified in the agreement. Alternatively, defendants maintain the agreement to purchase was mutually rescinded by the return of their deposit check given to Mrs. Eanes. In the further alternative, defendants contend the defective condition of the residence justified their refusal to purchase the property. The reconventional demand of the McKnights asks damages in the sum of $5,000.00 for mental pain and suffering caused Mrs. McKnight by the institution of this litigation. The McKnights also third partied Mrs. Eanes and her husband, Buddy Eanes, praying for such judgment against said third party defendants as may be rendered against the McKnights as defendants in the main demands. Alternatively, Mr. and Mrs. McKnight pray that if the agreement be found to have not been mutually rescinded, they be awarded judgment in the sum of $1,500.00 for prosecuting an action to rescind the contract to buy and sell.

The trial court found that certain admitted defects in the residence were minor, that Vendor timely produced a termite certificate as called for in the agreement, and that Purchaser breached the agreement to buy and sell. Judgment was rendered below in favor of the Fortenberrys as follows: Attorney’s fees, $2,000.00; mortgage payments incurred between the breach by Purchaser and the subsequent sale to a third party, $832.80; interest payments, $300.00, and deposition costs, $102.00. Damages in the sum of $11,000.00 (the difference between the $49,000.00 price agreed to between purchaser and seller and the eventual sale price of $38,000.00) were denied on the ground that had Vendor demanded specific performance, as provided in the agreement, no loss, in this respect, would have been sustained. Judgment was also rendered below in favor of Mrs. Eanes for a broker’s commission in the sum of $2,940.00. The McKnights have appealed both judgments against them. Mrs. McKnight has neither in oral argument nor brief, mentioned the dismissal of her third party demand for damages for mental pain and anguish. This demand is therefore deemed abandoned. However, the Mc-Knights seek $1,500.00 as attorney’s fees should they successfully defend on the ground the premises were defective. Mrs. Eanes has also appealed seeking an additional $600.00 as attorney’s fees and further asking that in the event her judgment against the McKnights be set aside, she have judgment for her commission against Vendor. The Fortenberrys have likewise appealed seeking damages of $11,000.00 and praying that the award for attorney’s fees be increased from $2,000.00 to $2,500.00. We affirm in part, amend in part, reverse in part, and remand for further proceedings as hereinafter indicated.

On appeal, the McKnights have filed a peremptory exception of no cause of action alleging that the purchase agreement is not binding because Mrs. Fortenberry, being judicially separated from her husband, did not sign the contract.

On July 27, 1968, Mr. Fortenberry listed for sale with Mrs. Eanes Lot 20, Square 2, Glenmore Place Subdivision, East Baton Rouge Parish. On October 9, 1968, the McKnights signed an agreement to purchase the property for the sum of $49,-000.00, subject to certain terms therein [494]*494specified. Simultaneously the McKnights gave a $1,000.00 deposit check to Mrs. Eanes. The agreement stipulates that it remains effective until 6:00 P. M., Thursday, October 10; 1968, and that the act of sale was to be passed before the Purchaser’s notary within one week. It was accepted and signed on an undesignated date by Mr. Fortenberry only. Notwithstanding the absence of Mrs. Fortenberry’s signature, it is expressly stipulated in the record that the purchase agreement was timely accepted. The closing date was fixed for Friday, October 18, 1968, at the office of purchaser’s attorney, M. Aubrey McCleary, Jr. Purchasers commenced occupancy of the home on October 13, 1968. The parties met on October 18, 1968, at the appointed place. The seller did not produce a termite certificate on this occasion and purchaser declined to buy. The parties met again the following morning at approximately 11:00 A. M., on which occasion purchaser refused to execute a sale on the ground the premises were defective and needed extensive repair. On Sunday, October 20, 1968, the McKnights vacated the residence. Mrs. Eanes returned the McKnights’ $1,000.00 deposit check on or about November 1, 1968.

The peremptory exceptions filed by the McKnights on appeal assert the nullity of the agreement to buy and sell on the ground that Mrs. Fortenberry is not a signatory thereto. In this regard, it appears that the Fortenberrys were judicially separated prior to the date of the agreement, and that subject property belonged to the community of acquets and gains which theretofore existed between them. This would, of course, have required the wife’s signature to the agreement since the decree of separation dissolved the marital community. However, we note, as previously stated, that the record contains an express stipulation that the agreement to buy and sell was duly made and accepted. This judicial admission precludes an exception predicated on the alleged irregularity urged on appeal with respect to the agreement to buy and sell.

In essence, Purchaser herein pleads a redhibitory defect sufficient to annul the sale had it taken place. On this premise, it is contended that since the sale could have been avoided, Purchaser was justified in refusing to buy, and should not be held liable for the broker’s fee or any penalties provided in the contract for failure to buy. In this regard, the issue is whether the presence of a “hump” in the living room floor of the residence, and certain information conveyed to the Purchaser relative thereto, imposed on Purchaser the duty of making an inspection which would have revealed extensive damage to the understruc-ture of the home.

Vendor maintains the defect was apparent and known to Purchaser, thereby imposing upon Purchaser the obligation of making a thorough inspection of the premises. In so contending, Vendor relies upon Pursell v. Kelly, 244 La. 323, 152 So.2d 36, and Bonhagen v.

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Bluebook (online)
251 So. 2d 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eanes-v-mcknight-lactapp-1971.