Firebaugh v. Hanback

443 S.E.2d 134 (1994)

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Nature of the Case

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Facts

A real estate agent marketed property for their principal as a sale in gross, not per acre. The agent who took the first listing determined the approximate size of the parcel by examining the deed and county tax records. Those records showed that the land had an annual assessment against the land for 126.669 acres. The principals believed the property was about 126 acres. Ps then got an offer to purchase the land from the Wittekinds with a formula to cover the cost of actual land shortfalls from the 126 estimated acres. The contract was returned in a modified form by Ds who executed the contract as is with no formula for shortages. The Wittekinds signed a counteroffer at a higher price with the formula for deviations, but that was also rejected by Ds. A third offer was conveyed at still a higher price with the deviations, and that was rejected by Ds. Another offer was conveyed to Ds but that was rejected. The listing agreement expired and the agent who did the original work left for another firm, (Ps), and that agent got another listing on the property with his new firm. Ps, then became interested in purchasing the land themselves. A contract was entered into for a price of $110,000 with the land being 126 acres more of less purchased in, as is condition with a waiver of broker’s fees. The contract was executed, and Ds understood that the sale was for exactly what was there regardless. Ps construed the language that they were not buying the property in gross. A subsequent survey revealed the property was only 89.5 acres. Ps sued for specific performance with an abatement of the purchase price to $90,967.80. The trial court found that the contract contemplated the sale of the land by acre and that Ps were entitled to an abatement but should be denied the relief because of their inequitable conduct; an agent who breaches a fiduciary duty owed to a principal is not entitle to specific performance. Ps appealed.