*1 Hagar, G. and Geraldine HAGAR John wife, Appellants
husband and
(Defendants), Clark,
Bobby Dean Clark Eldonna wife; Agency United Farm
husbаnd and Inc., Wyoming corpora Wyoming, Investments, Inc.,
tion; RLC a Missouri
corporation; Ebersberger; Scarlett Ro Milton,
berta L. “Bert” Wilder Rick
(Defendants), Joyce
William M. MOBLEY and T. wife,
Mobley, husband and (Plaintiffs).
Appellees Joyce
William M. MOBLEY and T. wife,
Mobley, husband and (Plaintiffs),
Appellants
UNITED FARM AGENCY OF WYO corporation; INC., Wyoming
MING, Ebersberger;
Scarlett and Roberta L. Milton, Appellees (Defendants),
“Bert” Hagar, Hagar Geraldine hus G.
John Investments, Inc., wife; RLC
band and Wilder; corporation; Rick
Missouri Clark,
Bobby and Eldonna Clark Dean (Defendants). wife
husband and
Nos. 5551.
Supreme Wyoming. Court
Dec. *2 Andrews, Jr.,
F. Anderson, M. Andrews & C., Riverton, P. for Hagars. Hall, Hooper, C., David B. Hooper & P. Riverton, Mobleys. Seipt Judson,
Robert M. Timothy J. Judson, Seipt Riverton, & Mil- Ebersberger. ton and ROSE, J., RAPER, Before C. THOMAS ROONEY, JJ., JOHNSON, District Judge.
RAPER, Justice. appeal This arises from a district court’s judgment ending complex piece of litiga- tion which had at its core an action to rescind a contract for the sale of lakeside resort on the basis of misrepre- fraudulent sentation. The judge trial rescinded the contract and awarded damages $94, 849.96 representing a payment down installments with interest to restore the buyers (Mobleys) quo. parties to status appeal raised, effect, three distinct issues require resolution. First, sellers, a challenge is made John Hagar (Hagars), Geraldine to the dis- trict court’s decision to rescind the contract; charge is made that the deci- sion light was erroneous in prior of both case law and the particular record in this and, excepted, and tear at its own Second, wear upon by we arе called appeal. cross-appellants necessary repairs to determine make all expense, to correctly dis- preserve improvements. whether the district court said damages Mobleys’ missed the claim for which will in- permit activity “E. To no Farm agency, real estate United against a safety, protection, terfere with the (United) and sales- Agency and its broker *3 Reser- operations Boysen efficient person misrepresentations as a result of voir.” es- concerning by the resort made its real Stanbury the Finally, lease authorized (Mil- manager, Roberta Milton tate broker sell, assign, or set over the lease to another ton), salesperson, Ebersberger Scarlett only if written of the Parks the consent (Ebersberger). finally, And also at the in- was first obtained. Commission must review the Mobleys, stance of the we authorization, the Pursuant to this latter the Ha- district court’s decision to award changed times within lease hands several in gars, predecessors to the benefit of their Then, April next six 1967 an years. the selling a of their interest whom balance assignment Bobby Dean and Eldonna of a fire price owing, proceeds was still Wyoming approved by was State Clark policy purchased by Mobleys, insurance their in- They Parks retained Commission. during pendency which became payable 28, 1975, at which time July terest until following a fire at the resort. of lawsuit agreement an to sell to the they executed part, part affirm in reverse in We will Hagars. with proceedings and remand for further operated possession took respect liability Milton located on the the business establishment Ebersberger, the realtors. Resort un- known as the Lakeside property May In of that til the summer of 1978. I receiving inquiry an year Hagars, after 21, 1960, Wyoming On June State listing the possibility of concerning the lessor, Commission, Parks as executed a sale, with real estate bro- leasehold for met Stanbury agreement lease with the S. J. Miltоn, branch office of representing ker a Company, property by lessee. The covered meeting, in Dubois. At that United located eigh- approximately the lease consisted of the lease would indicated that Boysen teen acres of land on Reservoir lo- that the year 2022 and expire until the County cated in Fremont near Shoshoni. run previous year had profit net for the twenty- The term of the lease was set at $50,000 $60,000. They prom- also around though option to for years three renew “to a inspection for open ised to their books thirty years provided an additional was meeting concluded buyer.” fide bona addition, Stanbury. In the lease was ex- the resort for Hagars having listed with the pressly subject to the lease between the sale, agent. estate as real with United Parks Commission and the United States Government. June, to those sent out letters In United buying interested people on a list of
Further, by the terms of the Stanbury named on Mobley, prospect Mr. as a resort. Commission, amongst with the Parks on the list, following letter received the provisions, promised agreed: other of United: letterhead responsibility “A. To assume control, prevention, suppression Mobley, Mr. “Dear fires, preservation and the of law and custom- us from our “Your name came to premises. order within the being City Kansas center in er service * * * * * * area. in our in resorts for sale interested business have a fantastic currently We keep “D. To the lands af- and maintain may be interested. you sale in which for lease, including fected all im- of land listing of 18 acres thereon, “This consists provements good erected .Wyoming leased from the State repair, and reasonable state of reasonable just per yezr Ebersberger, as well at expire Hagar, and doesn’t as Mr. $600 [sic] until at which time the lease premises. went over the resort and year periods. renewed for 25 The land 25, 1978, again On met June Boyson Resevoir [Bоysen] borders [sic]. agents, with United’s Milton and Ebersber- “The business consists of a unit trailer ger. Though meeting primarily park, perma- four units of which are for listing held to discuss the owned trailers, nent the other 53 for smaller Mobleys, mention was made trailers electricity with hook- water Hagars’ Lakeside Resort. As to content ups. park Trailer two also has restroom conversation, con- evidence facilities, one with There is also showers. flict. her testimony, Milton claimed that a 4-unit motel very attractive at- copy she Stanbury had a lease with tached living quarters. June 25 meeting her and that she bar, “The building main liquor houses let the Mobleys offered to it. How- *4 read store, area, bait shop, private office ever, Mobley Mr. testified that at that lounge, dining shop. room and coffee meeting Milton indicated she had not There are also gas pumps three self-serve yet a copy though received of the she lease large building and a on storage prop- from the Wyoming heard Parks State erty. Commission it was unreadable. heat, “There is all electric an artesian water well septic and two tanks on the upon In representations reliance property. The owners a have live-bait resort, made to them concerning the permit allowing them to sell minnows to submitted a on offer fisherman. equipment good All inis con- 27, Following negotia- June some complete dition and a inventory goes with tions, 13,1978. the deal was July closed On the business. 1978, 15, June the Hagars had received a “The owners yielded very a substantial Wyoming letter from the Recreation Com- income, net open and books bona- (successor mission to the Com- State Parks buyer. fide price just The selling is 1) iterating mission was due lease $230,000 possible financing. owner 20, expire to on June 1983. The you information, If would like more or thus knew should have known from would like to make arrangements see experience 15, with the lease and the June property, please this your let know at us from notice prior Commission earliest convenience. sale, expira- consummation of the the true “Sincerely, of the Hagars’ tion date lease. The income Ebersberger /s/ Scarlett tax records in evidence each reflect that for Ebersberger Scarlett of the years they operated Lake- Associate” Resort, side the business money. lost The Mobleys contacted United and ex- pressed 1979 the a com- interest In June Clarks received Arrange- the resort. ments were made from the Wyoming munication Recreation to tour property. 11, 1978, concerning On June Re- the Mob- Commission the Lakeside met leys the two agents, United Milton and sort: 36-4-119(a), management
1. Section parks W.S.1977: and of the commission “ Wyoming “(a) Upon and the state land and water con- effective date this act the Wyoming Wyoming commission of and servation recreation commission shall be by any preserve agreements, Pass bound Old South historical and commis- all contracts obligations Wyoming acquired Wyoming sion in the incurred used parks performance previously imposed state land commission and and water duties money upon conservation commission Old South Pass those commissioners. All from preserve prior historical operation commission South Old Pass historical effective date of preserve general this act and shall succeed to shall be credited to the records, documents, equipment, all personal and other fund.” or real under the control the Lessee “Article states Mr. and Mrs. Clark: “Dear per- this lease to assign, or set over fee for “Because lease this Concession son, corporation, without persons, or time, paid Lease was not on we had cause Parks Com- of the State written consent inspect our file on this lease. Commis- (Wyoming Recreation mission being “We find the in escrow lease held all any and sion) agreеs that and further by the First National Bank of Riverton com- the Lessee shall subleases made assigned. you and cannot be However with the terms of ply lease[.] executed Contract to Mr. and Sales state- certified “This office must July, Mrs. John Hagar in 1975. Written current you, stating who the from ment permission given you execute is, names, addresses, terms sub-lessee the Sales Contract with Mrs. Mr. and must The sub-lessee of the sub-lease. Hagar; however, assignment no lease its copy of the lease with a furnished could be change executed to show of les- you assignments, which amendments 1978, July, see. we received from do. you stated would estate real broker an unreadable almost a check for $600.00 “We have received copy of a Sales Contract from Mr. and on June from Hagar Mobley. Mrs. to William and Joyce March, 1979, fee. Perhaps knowledge because of lack of Lease, the contents “Sincerely, sold their but the Rec- Wyoming interest Jan L. /s/ Wilson reation Cоmmission issued no written *5 Jan L. Wilson permission for this transfer and no as- Director” signment forms could be executed. demands triggered This letter a series of as Wyoming “As far the Recreation Com- Clarks, the between the and cross-demands concerned, you mission is Lessee are the necessary Hagars Mobleys, and the for this Lessee of area —the Record —and In Au- repairs improvements made. ultimately you financially responsible are this 1979 out of which gust the lawsuit the lease for fee and for the maintenance Mobleys arises was initiated appeal of this area. concession Clarks, Mil- Hagars, against area in a kept up “The has not been ton, and some others. Ebersberger, presentable inspection manner. re- [An misrepre- charged that fraudulent port problem was to identify attached which made sentations been to them had areas.] of Re- purchase the resort. induced “We feel it to the only you fair alert agreement purchase scission ends fact the term of Lease this damages.2 sought as well as 21,1983. However, clause June there is a court proceeded to trial to the original The case denoting lease failure 27, The court found comply on October 1980. with the conditions of this to the inten- (Wyo- made and the Parks Commission State misrepresentations Commission) ming may termi- tional material Recreation in or- concerning the Lakeside Resort days this 60 written no- fact nate lease with Accordingly rescis- to sell it to them. to the der tice Lessee. was ordered will submit of the contract “Article 5 the Lessee sion states sums plans proposed payment well as of certain for all construc- detailed whole attempt make the approved pri- shall be an plans tion and said perti- again. necessary, As other facts beginning construction. aspects district court’s determi- many has nent of the instances Article complied nations will be discussеd later. with. been Further, litigation making case filed tors. discussion entire 2. Cross-claims counterpro- only exceedingly complex, appeal court would be however this before district solely issues the Mob- raises connected with ductive. leys’ claims the real- 132 Kackley
II
sufficient to warrant rescission.
v.
285,
Webber,
587,
Ky.
310
220
9
S.W.2d
The rescission of a
is
contract
in effect a
(1949). The policy
A.L.R.2d 500
behind this
repeal or a
nullification
a contract.
purchaser
rule is to
rely upon
allow a
granted,
When it is
the contract is annulled
representations
seller’s
as to what consti
parties
and the
quo;
restored to status
purchased.
tutes the land being
It is de
is,
attempt
place
is made to
signed
encourage
expedite
trust and
parties
positions
in the
they would have
business
example,
transactions. For
in,
been
but for the contract. See 17 Am.
himself,
protect
buyer, to
should not have to
(1964).
Jur.2d Contracts
512
§
go through
expense
having
the time and
developed
Rescission
England
as an
Utah,
Jones,
the land surveyed. Dugan v.
equitable remedy
granted
that was
(1980).
In Meeker v. Wyo., 604 P.2d of Hagars. 556 half the The difference be (1979), that, this court observed in the case tween a lease expires which within five of the sale of land, an misrepre- interest in years but option thirty-year allows an for a sentations concerning renewal, the boundaries of the expires and one which forty-five property are actionable. The intent of years grants options the but every to renew seller, making when misrepresentation, the twenty-five years, is substantial and mate is false, innocent, irrelevant. A though as- The Mobleys purchasing rial. were less sertion property’s boundary bemay than half of they thought they what “(b) mis- by The is also clear that his innocent material purchasing. evidence representations relied the upon representation, the or length by of made to them the lease “(c) misrepre- or fraud material by the Hagars. They not see the lease the did person to act purporting sentation of a closing They sale. trust- prior to on the agent, as the or payee’s Hagars’ representations. ed the “(d) misrepre- fraud or material by the appeal the are now heard to On person, provided of a third sentation that hold that say court should fraud payee that the has notice of the investigate rep- duty had representation given or before he has Hagars; resentations made that we something promised or of value.” punish Mobleys being should naive Section 150: on trusting put the burden “In an restitution in which action of assuring honesty backs of sellers. money, benefit the measure received They language base their on argument benefit amount recovery for this is the supra White v. Ogburn, found in 1171 to received.” money the effect that: “ * * * say plaintiffs We do not Those rules from the Restate- black-letter rely upon representations could not made Restatement, square ment also with § defendants, to them but could (1981): Contracts 2d not blind themselves to observe readi- “A avoided contract on party who has ly place upon available facts and reliance mistake, ground of capacity, of lack alleged misrepresentations such without duress, influ- misrepresentation, undue diligent these making inquiry facts or a fiduciary ence abuse of relation » * * * entitled to restitution for benefit However, in passage this court was party he on the other has conferred merely saying party that when a has been by way part performance reliance.” aware of be- made some inconsistencies point final that the district Hagars’ representations tween the facts and the erred, finding a of con- court in not breach party, investigation is the other some called by Mobleys,does not merit discus- tract required. Here, Mobleys for and had no contract; it sion. court rescinded inkling the Hagars’ statements were Thus, it. obligations all due under voided false; no accordingly they duty what breached could Jones, investigate Dugan further. See did not exist. supra, 615 P.2d Finally, Mobleysclearly demonstrated injury. They substantially received less Ill *7 they bargained reason of
than for mate- to claim United Mobleys’ against As misrepresentations. they rial Thus carried Ebersberger, agents and its Milton and proof their burden of and were entitled to a discussed already facts in to those addition rescission of the and restitution. contract earlier, af- be As mentioned should noted. The trial court followed law obviously Ha- convincing the ter Milton succeeded in it, as we have our outlined consistent with it with to leasehold and list gars sell their 150, Restatement, approval of 28 and §§ United, out let- Ebersberger sent she and (1937): Restitution prospective buyers ters list of —includ- 28: Section represen- same ing Mobleys. false person money who to paid “A has another Hagars Milton and by the to tations made of a fact who because mistake of letter. Ebersberger repeated in that were expected does not obtain what he in re- turn is entitled from the had Mobleys to restitution after the On June other if the mistake was induced: and had expressed in the resort interest it, Ebersber- agents Milton and
“(a) by payee, or even toured fraud of Wilder,3 With to ger, along with Rick em- “A. reference Lakeside? another ployee visited in “Q. Yes. Casper financing. testi- to discuss Milton was “A. Mrs. main concern Mobley’s concerning meeting:
fied that money soon did receive the they how “Q. pur If I correctly, understand they from RLC so that could make
pose meeting on was of this June 25 to offer on Lakeside. “Q. took that we from “A. offer for Lakeside. “Q. when explain the from Mrs. Wilson with the Recreation one we felt was best able Rick berger] inspect “A. it Board on Lakeside. Lakeside. We make a loan copy of the was sufficient [*] some Wilder, What Did We took some Well, yes you RLC, their and I were under the were you [*] went happened formalities if against property with us because he was the going took they take to Casper? [*] equity our to obtain an offer on no. listing offers. were to make that anything then? in [Emphasis added.] of potential [*] district we had received property? that RLC could Scarlett [Ebers- Casper forms We took propose [*] impression with manager, and we [4] see if [*] loan you have title “Q. Was could. from the “A. “A. about legible, but we had “Q. if ticular the lease on Lakeside? “Q. “A. We had, “Q. “A. Not that they [******] income of Lakeside at this search Was Did Was done as far as an I believe I possible didn’t. were about the lease? fact, you informed there state, anything anything done to make received interested what tell financing I Mr. recall, that them they brought Wilder discussed discussed further conversation a it copy no. appraisal, anything by RLC? wasn’t all that sure there were would have reading explained of that it concerning concerning down and meeting? that it, have lease they par- we “A. We arrived about ten or ten thir- if property no other liens or ty morning. in the Mr. Mobley go had to they there did not exceed interested, complete job discuss or some nature amount RLC would loaning thing. of his type business. [*] [*] [*] [*] [*] [*] [******] “Q. repayment “A. What about of the loan Mobley Mrs. and Scarlett and Rick itself? myself spent, probably, an hour and a half or looking proper- so at their Casper They “A. had that their anticipated Cas- ty. One of the loaning criteria for RLC per property probably would sell within customers money they year. have have I loan RLC believe their collateral, some year. anticipated some assets. In this case was for a They it Casper property property pay seemed to be that the sale of that in which to off there, that asset. that loan. So while we were thought we why not look at it and this “Q. Did they for type thing. of kill Sort two birds with sale? * * * stone, one in that sense. Obviously I don’t they “A. know if did. “Q. Now, you say you when discussed day didn’t have it sale the *8 properties length, the and with refer- visited Casper we with them in on June Lakeside, ence to what in particular did they they 25 because indicated that would you discuss? property like list that with United.” Although Rick defend- Wilder was named a 4. Rick Wilder also testified that Invest- RLC action, in party subsidiary ant appeal. he is not a to this was a of United. ments pretty quick, wouldn’t something had there be meeting, By the end of the the Resort left. signed agreement with United a Lakeside listing Casper property; of their Farm for the sale “Q. Why you say did that? work- agents Milton and Wilder were destroyed it being “A. Because wаs out through RLC ing arranging financing on there. they for the so that Investments de- “Q. you being When ‘it was say Hagars’ Re- could the Lakeside specific? be more stroyed’, you can a little sort. just being destroyed? What was
formation which should have mission. The the leasehold. never nor lease from the cerning knowledgeable himself or herself before it, after she had read and failed to understand ble anyway. The lease was not Mobleys but and in until the lease Dean sation terest. Clark testified about their conver- enough to show that have Meanwhile “Q. “A. She wanted to discuss Lakeside. “Q. Second, “A. Yes. problems she offered to told way she been Clark, [*] ****** given meeting Mr. Do Roberta fact of its contents. Milton claims follows: received a on June you Clark, fairly [*] indicated to Hagars with the agent to someone who has I did. expired was? recall what the occasion opportunity to see Wyoming Hagars’ Milton in 19,1978 clear, did [*] show Milton had received claimed. copy field, the number of claim that you did Hagars’ First, them [*] or at predecessor the lease Recreation Com- not Milton the lease have a June apprised her quite it was on June claims [*] least clear they were public Stanbury met with the lease of 1978? illegible, meeting add should placed illegi- in in- years that, [*] con- in- up as cages. The animals were “A. The side paint en was stalls Planters were pond Trash and ing. There had been electrical [sic] “Q. Mrs. Milton “A. “A. “Q. lease. didn’t Recreation newed. “Q. Recreation “A. would there was might [******] carpet zoo, so wires Was there What was laying Yes. We What How much I area. Electrical signs knocked over and left expiration not meet important told filthy. Lights the doors were fallen out were lawn weeds testimony exposed. Really. was full approve was Commission on the down. The trees Commission building regarding the term of lease her it would be their being discussed, was dead. said problem there would was went date of any to do building. it and аpproval, in that torn accumulating was bore out grease. problem conversation wiring were something.” over if the the lease? down. [in] specifically? dead or getting that’s respect? There were were unreplaced. The fences the entire lay. Bear was show- [dis]array. The kitch- up to with the The in- hookup why dying. in it re- gone. with fact be, it that, though “Q. trial happened What on occasion? Milton admitted at warned her that the Clark very over the “A. She concerned been in place ruining the lease, how one. She couldn’t understand lease, relay not she did violation Stanbury’s come this lease was J.S. response Mobleys. information my name. we discussed name and So asking Milton stated: question why, lease, thoroughly. went over it She representing the what I was wanted to know kind of terms “A. representative as a I would set to consent to this instance conditions down relationships I There certain my money sale and I told her wanted sellers. have that seller if do a broker somebody and I told her didn’t *9 136
pertain really to them and if don’t not stand in the same lay shoes of a vendor. sale, really have that much to do with the Such realtors owe the vendee the same public large. aren’t elses because duties of owed the anybody’s integrity business honest, They unhappy trustworthy Mr. Clark told me that he was must be and com- petent. Hagars, impres- with the that it was his place deteriorating sion that the and Dill, As was said in Zichlin v. 157 Fla. gone
had
down hill
I’m
and whatnot.
not
(1946):
4
So.2d
it’s my obligation
report
sure
that to a
“Ultimately
just
we must determine
what
potential buyer when I
know
don’t
duty
appellant.
the broker owed
Did he
to be a fact.”
duty
owe a
except
one
the owner
Mobleys’
The district court
property? Evidently
tried
who had listed the
permitted
claim
the realtors and
the chancellor was of the view that he
connection,
judg-
duty
buyer.
evidence in that
owed
In this he
but
its
no
duty upon
Generally speaking
ment it found no
the realtors as
was in error.
agent
only
a
responsible
principal.
matter of law. In its conclusion of law in
to his
This, however,
regard
is different. The broker
it ruled that:
occupies
in Florida
a status under the law
“5. The
agency
defendant real estate
recognized
responsi-
with
privileges and
brokers,
agents
and its
to-wit: Unit-
belongs
bilities. The broker in this state
Inc.,
Agency
ed Farm
Wyoming,
Scar-
privileged
monopo-
enjoys
class and
a
Ebersberger,
lett
Roberta L. ‘Bert’ Milton
ly
engage
in a lucrative business. See
Wilder,
and Rick
should be dismissed
Fla.Stat., ’41,
seq.,
Sec. 475.01 et
F.S.A.
complaint
from the
they only repeated
** * *
(475.17):
requires
The statute
representations
made to them the Ha-
applicants
all
persons
who are natural
gars concerning
prof-
term
honest,
truthful,
competent,
shall be
itability
Hagars operation
of Lake-
character,
trustworthy,
good
and bear
side Resort and
independent duty
had no
*
*’*
reputation
dealing.
for fair
obligation
to inquire into the truthful-
state,
therefore,
prescribed
ness or
“The
has
accuracy
representa-
of these said
high
qualifications and,by
tions.”
standard of
same
granted
monopoly
law
a form of
legal
conclusions of the trial court are
doing
and in so
the old rule of caveat
binding
on this court. Matter of North
emptor is
dealing
cast aside. Those
Wyo.,
Laramie Land
605 P.3d
Company,
may naturally
a licensed broker
assume
(1980). The trial court’s conclusion of law
possesses
requisites
that he
of an
was error as to
duty
of realtors toward
honest,
man.” 25
at 4-5.
ethical
So.2d
buyers.
Jones,
enlightening
Dugan
An
case is
IV
supra.
(coinci-
There an agent for United
Real estate
dentally,
brokers and salesmen
apparently part of the
or-
same
licensed
Wyoming
State of
ganization
us)
as in the case before
took an
required
high
to meet
honesty,
standards of
listing
exclusive
for a
suppos-
store and the
integrity,
competency.
edly
trustworthiness and
twenty-two
three-quarter
acres on
regulated
Theirs is a
profession. Failure to
agent repeated
which was
located.
it
satisfy
ground
those standards is
description
for sus
catalog
in a United
pension or revocation of a real estate bro
further
observed
salesperson’s
ker’s or
license.
quarter-mile
An act licens
frontage
river
with twelve
ing
agents
real estate
must be construed in
pasture
eight
acres of native
acres of
light
purpose
protect
an obvious
irrigated improved pasture. After
ing
public
in the handling
important
purchased
property, they
Joneses
dis-
and valuable
relating
transactions
to real
covered that most of the land was under
property.
State,
river,
Toavs v.
Wyo., 635 P.2d
leaving
them with about six and
result,
agent
As a
such an
does nine-tenths usable acres.
counter-
They
*10
“ * * *
against
claimed
the vendor when he tried to
No standard could be counte-
foreclose
third-party complaint
and filed a
by
nanced
the real
profes-
estate brokers’
аgainst the realtor. The case was tried to
sion, accepting as a reasonable standard
against
the court who found
the Joneses
of care
showing
wrong proper-
appeal
and dismissed their claims. On
ty
prospective
on behalf of a
seller to a
case was reversed.
prospective purchaser.”
Though
a
standard
occupying
a fiduciary rela-
tionship with prospective purchasers,
Cubin,
of care from
realtors.
In Distad v.
agent
real estate
by
hired
the vendor is Wyo.,
(1981),
ity
Property.”
statement,
(1958):
Agency 2d
broker,
Milton, a licensed
Ebersber-
rep-
fraudulently makes
agent who
“An
United,
ger,
salesperson,
a licensed
duress,
knowingly
resentations, uses
or
to the
employer,
their licensed
had duties
tortious
in the commission of
assists
was in error
Mobleys; and the district court
by
by
principal
his
fraud or duress
partic
contrary.
when it held to the
This is
subject
liability
to
tort
others is
ularly
agent
true
Milton had read the
since
or du-
although the fraud
injured person
agent Ebersberger
ad
involved while
in a
on behalf
ress occurs
transaction
it;
skimming
to
that should
mitted
principal.”
apprised
terms of the lease.
them of the
section:
“a” to that
As said in comment
Further,
by
broker Milton was even notified
* *
“*
]q0t
agent who know-
only is an
regarding
Mr.
his concerns
Clark of
subject to
misreрresentations
ingly makes
in this
professionals,
lease. As
the realtors
party,
agent
but an
liability to the other
something
least realized
case should have at
misrepresenta-
amiss;
in the
statutory duty, aris-
who assists another
was
and their
important monthly
aspect
was in arrears on
is
chase
obligations,
6. There is another
of this case which
realtors,
represented
disturbing.
during
to his client
and in fact
Did the
the course
Fitzgerald
corporation
buyers?
negotiations,
agents
was solid.
that the
become
Edelen,
(1980),
Colo.App.,
cert.
VI rule, findings claim de- As a to that corollary judgment improper joint should have been rived from of an application and sever against Wright legal al 9 & Hagars and the real estate standard cannot stand. Miller, 2585, We supra, defendants of them. footnote 7. there- and each To the ex § fact, tent findings that the acts of each fore must con- contributed to vacate the any as to causing Mobleys damage, judgment tort there clusions of law and may be remand to liability. Every Ebersberger tort is in Milton and complete itself, participate and all court who its commis district for a reconsideration findings sion severally making evidence and jointly and liable for the fact, judgment harm resulting Recovery may therefrom. of law and con- conclusions joint be had set out. We against one or more sistent with law herein tortfeasors Stoner, 109, judge sued jointly. Wyo. Mau v. 15 understand since the trial 135, (1906), 87 court and Wyo. P. 434 reh. denied 15 case is now of this a member 135, 466; duties, 89 another perform P. those C.J.S. Torts unable §§ through 37, sitting his including arising assigned; those out must be he was not of a C.J.S., any if relationship, supra, Accordingly, contractual 36. own district. other § he determining liability сorporate judge assigned cannot is satisfied proceeds because he “2. That the insurance on de- perform those duties did not reason, preside at the trial or for other with the Clerk of posit Court may grant he in his discretion a new trial $76,000 plus interest amount of accrued on those issues. Rule W.R.C.P.7 See paid Judgment to upon entry of this also, Annot., 22 A.L.R.3d “Power of defendants, Bobby Dean Clark and Judge, Successor or in Civil Substituted Clark, however, provided, Eldonna Case, Judg- to Render Decision or Enter defendant, pay said defendants Testimony ment on Heard Predecessor.” Riverton, Wyo- First National Bank of necessary complete If final deci- ming, present owing on the balance sion, judge, within the discretion of the trial Bank, parties’ loan with said said SBA additional evidence be taken. for both sum to be determined counsel parties stipulation pertaining and a VIII payment said sum entered before earlier, As noted were the Clarks Provided, proceеds to said defendants. Hagars’ predecessors During in interest. further, $76,000 ac- plus that the sum of period the time possession were in crued interest shall be credited the resort they obtained a loan from the Hagar-Clark the balance due under the First National Bank Riverton. In the *13 28, Agreement of 1975.” July agreement security the resort was named appeal Mobleys challenge collateral, On the and the required Clarks were they are holding the district court’s not keep the improvements on the leasehold proceeds to receive the of the insurance insured for the benefit of the bank. policy they paid. Though they for which Hagars, The purchase agree- under their getting purchase succeeded in the contract Clarks, ment with agreed keep the the rescinded, they want this court to rule that insured, improvements leasehold and its .and they money repre were also entitled to the turn, name the Clarks as payees. loss senting imprоvements on the leasehold. Hagars required Mobleys in their However, we hold that are not entitled purchase agreement to maintain the insur- both, money go insurance should coverage ance for the Clarks’ benefit. The security to the holder of the interest on the Mobleys purchase did two policies insurance buildings destroyed. premises for the with a total coverage $76,000.00. However, policies named of a con- very essence of rescission RLC Investments as payee. loss RLC has tract is a cancellation of the contract and a appealed. not parties positions restoration of the 1, February
On or about
they occupied prior
1980 the Lake-
to execution. See Gaido
side Resort
(1951):
burned. It was
a total
Tysdal, Wyo.
declared
as a result were due as But, the con- destroyed buildings. since rescinded,
tract were in buildings;
effect never entitled to Hagars were. And thus the compensation
the ones who should have the loss, payable accordance their contract with the Clarks. and James Frost d/b/a James FROST
Further, Company, but for the execution of the and Frost Frost Construction contract, would never corporation, Company, Construction purchased coverage fire insurance Appellants (Defendants), Resort; the Lakeside would their coverage. have maintained Accord- Harvey and Linda B. J. EGGEMAN that, cancelling ingly, only it makes sense (Plaintiffs). Eggeman, Appellees *14 Mobley’s purchase contract and restor- ing quo, have the status No. 5540. as indi- proceeds, benefit of the insurance Supreme Wyoming. Court cated. accom- judgment The district court’s 23, 1981. Dec. plished proceeds this. The were ordered Riverton, paid to the First National Bank of
but both the re- Clarks and
ceived credit their contractual obli-
gations payments as if they had made the transferring up line to the money
bank. The issue Mobleys did not raise the should have received reimburse- premi-
ment for the cost of the insurance
um; failure have been to Hagars.
benefit of the reversi- We find no
ble error here. part, part
Affirmed reversed
remanded to the district court to vacate con-
pertinent part findings, and revise its judgment,
clusions and consistent with this
opinion.
ROONEY, Justice, concurring. majority
Although I concur with the I do
opinion, I want to record the fact that