Foster v. Cross

650 P.2d 406 (1982)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Stephens asked Warren Sanders, a local real estate broker, to find a large piece of land in the foothills that would be suitable for development into a single-family residential project. Sanders located 80 acres of a homestead staked and owned by Ds. Sanders contacted and met D in February of 1978. Sanders stated that he was looking for land for a developer. D refused to sign a listing agreement with Sanders. Negotiations proved fruitless. In September of 1978, Sanders contacted D and presented an offer from Stephens. D rejected this and two subsequent offers. A third offer also listed Robert Milby, a local contractor, as a co-purchaser. D wrote up terms acceptable to him which he sent to Sanders. The terms were for 40 acres with the possibility of an option for the remaining 40. Sanders typed up the proposal on a preprinted form agreement. One of the standard clauses stated that the broker was the seller's agent. D expressed some concern to Sanders about the finances of the buyers. Sanders made several representations. Their accuracy is disputed. When the purchase agreement was signed, on November 29, 1978, D also asked for financial statements for Stephens and Milby but did not receive them. The agreement provided for a 90-day period until closing. In early December, Milby approached James Foster (P), a painting contractor with whom he had done some business, and discussed the assignment of his interest in the contract. The assignment occurred on December 10. D was not informed of the assignment until February or March of 1979. Difficulties arose as to the time frame and procedure for retracting and platting. D continued to insist on financial statements. Stephens' financial position also deteriorated, leading to his bankruptcy filing in early March. On February 22, he assigned his interest in the sales agreement to his landlady, Sharon Dale. The financial statements of Stephens and P were delivered shortly before the scheduled closing. D refused to proceed with the closing. D and Dale tendered performance in the names of Stephens, Milby, 'and certain other individuals who are associated with them.' The tender was refused. Dale assigned her interest to Pr, who subsequently filed for specific performance. The court found for Ds, stating that Sanders was the buyers' agent and that his misrepresentations as to Stephens' and Milby's development experience and financial position rendered the contract voidable. P appealed.