G. Val SIMPSON and J. Ernestine Simpson, husband and wife, Plaintiffs-Appellants, v. A. J. JOHNSON and Ethel C. Johnson, husband and wife, Defendants-Respondents.
No. 12481.
Supreme Court of Idaho.
July 13, 1979.
597 P.2d 600
Here we see no hardship, injustice, or compelling reason why the summary judg- ment here should be final, until such time as the entire case is determined.
It may well appear in the future prosecu- tion of appellant‘s claim that he can satisfy his burden of proof of negligence on the part of the respondent by means other than through the use of res ipsa loquitur, or that in the course of proceeding against the oth- er named defendants, the other probable explanations of the cause of the explosion may be satisfactorily dispelled and an infer- ence of negligence on the part of the re- spondent may once again be focused in his direction; in which case the trial court should not be bound, by an earlier final order, from entertaining an application to set aside the dismissal, or otherwise to alter, amend, rescind or change the summary judgment at any time before the entry of judgment adjudicating all claims between the parties. Dawson v. Mead, 98 Idaho 1, 557 P.2d 595 (1976). The certification of the summary judgment as a final order was therefore improvident and constituted an abuse of discretion by the trial court. Such being the case, the finality of the order must be set aside, rendering the order of summary judgment not appealable. Pinchon v. L. J. Broekemeier, Inc., supra. The appeal is dismissed.
SHEPARD, C. J., BAKES and BIST- LINE, JJ., and MAYNARD, J., Pro Tem., concur.
Dean E. Miller, Caldwell, for defendants- respondents.
BAKES, Justice.
This appeal involves a suit by the plain- tiff appellants Simpsons, the purchasers of a lot in Cascade, against the defendant re- spondents Johnsons, the sellers of the real estate, for damages resulting from an error in the legal description in the deed to the property. The district court entered judg- ment in favor of the Johnsons, and the Simpsons brought this appeal. We affirm.
In the spring of 1973 the Simpsons were looking for a building lot in Cascade, Idaho. In March of that year Mrs. Simpson asked the Johnsons, who lived in Caldwell, wheth- er they would consider selling their Cascade lot. The Johnsons indicated that they had not considered selling the lot but that they would think about it. Mrs. Johnson later called Mrs. Simpson and offered to sell the lot for $7,000. Mrs. Simpson, after briefly discussing the matter with her husband, accepted the offer. The Simpsons and the Johnsons agreed to meet a few days later at a Cascade restaurant in order to consum- mate the sale.
Prior to the consummation of the sale, the Simpsons examined the property from their automobile, but they did not actually walk on or around the property since it was covered with snow. Mrs. Simpson, who was employed at the treasurer‘s office at the Valley County courthouse, also examined the plat book, which indicated that the lot had a street frontage of 327.5 feet. The Simpsons intended to build a house on one half of the lot and sell the other half as a building lot. The record does not indicate that the Simpsons ever made this intention known to the Johnsons. However, Mrs. Simpson testified that Mrs. Johnson had stated that the property constituted approx- imately three and a half lots.
On March 20, 1973, the Simpsons and the Johnsons met at a Cascade restaurant and agreed on the terms of payment. During their conversation, Mr. Johnson asked the Simpsons if they would like to examine the property. Mrs. Simpson declined, stating, according to the Johnsons, “No, we don‘t need to. I work in the courthouse and know more about the property than you do.” The couples then went to the office of Robert Remaklus, an attorney selected by the Johnsons. Mr. Remaklus prepared a standard warranty deed and apparently made arrangements for title insurance. At Remaklus’ office some question arose about the location of a boundary line. At Remak- lus’ suggestion, he, the Johnsons and Mrs. Simpson (Mr. Simpson had returned to work) went to the courthouse and examined the plat in the assessor‘s office. According to the plat, the street frontage of the lot was 327.5 feet. After some further exami- nation, Mr. Remaklus concluded that the legal description in the deed, which describ- ed the property as having a street frontage of 327.5 feet, was correct, and the deed was delivered to the Simpsons.
About six weeks later the Simpsons de- termined that the street frontage was in fact substantially less than 327.5 feet. A later survey determined that the actual frontage was about 267 feet. This narrow frontage, together with the odd shape of the property, made it impractical to divide the property into two lots.
The Simpsons notified the Johnsons of the error and sought an adjustment in the purchase price. In response the Johnsons offered to rescind the sale, but the Simp- sons rejected that offer.
Prior to the discovery of the mistake the
Simpsons had selected some house plans and
a contractor, but construction had not be-
gun and the Simpsons had not entered into
any binding construction contracts. Mrs.
Simpson was particularly fond of the lot
and wanted to start construction as soon as
possible. Also, at the time they rejected
On April 30, 1974, the Simpsons filed suit against the Johnsons alleging failure of ti- tle, false representation and breach of war- ranty and seeking $3,000 as damages for the difference in value between the proper- ty as represented and the property actually conveyed. The Johnsons answered, denying that the plaintiffs were entitled to any money damages and, in a counterclaim, sought reformation to correct the error in the deed. The case was tried to the court on May 8, 1975.
At the trial a surveyor testified to the difference between the property as describ- ed in the deed and as it actually exists. However, the surveyor did not state the difference in quantity between the land de- scribed in the deed and the actual parcel of property.
The Simpsons testified that in their opin- ion the property described in the deed was worth $7,000, the purchase price, in March of 1973, but that the property actually ac- quired was worth only $4,000 at that time. Laurel Judy, a real estate loan officer at a bank in Cascade, was called as an expert witness for the Simpsons. He testified that in his opinion the property actually acquired by the Simpsons was worth $4,500 in March of 1973, but the property as described in the deed was worth $7,000 at that time. Both the Simpsons and Mr. Judy attributed most of the difference in value to the fact that two residences could not be built on the property actually acquired. Mr. Johnson testified that in his opinion the property was worth $12,000 and that they sold it for $7,000 only because the Simpsons caught him at a “weak time” when he was con- sidering a move to Arizona.
The trial court ruled that there was no evidence of any fraud but that the evidence did disclose a mutual mistake. The court also found that there was no representation concerning the quantity of land involved and that the description was by metes and bounds. The court concluded that the Simpsons were not obligated to accept the offer to rescind but were entitled to sue for damages provided they could prove a loss. The court, however, found that the Simp- sons had thoroughly examined the land and therefore knew or should have known what they were buying for $7,000. The court concluded:
“It further appears that the land they purchased was worth $7,000 at the time of purchase, although the evidence on this point was conflicting. In any event, the plaintiffs have the burden of proving that the value of the lot was less than $7,000. Those who testified concerning values were not truly expert witnesses. Evi- dence concerning value does not prepon- derate in favor of the plaintiffs. They have failed in their burden to prove dam- ages.”
Accordingly, the court denied the Simpsons’ claim for money damages but ordered the deeds and other documents of title correct- ed.
The Simpsons then moved to amend the findings, conclusions and judgment. In de- nying the motion, the trial court acknowl- edged that both the Simpsons and the John- sons, as owners of the property, were com- petent to testify concerning the value of the property, but the court gave little weight to their testimony, describing it as “a stand- off.” The court also rejected the testimony of Mr. Judy, the expert witness. While the court recognized that Mr. Judy may have been qualified to appraise the property, the court concluded that the evidence did not establish that Judy had made a credible appraisal of the property. The court con- cluded that it was not obligated to accept as true the uncontradicted testimony of an expert witness, and therefore ruled that the Simpsons had not carried their burden of proving damages by a preponderance of the evidence. The Simpsons brought this ap- peal from the trial court‘s order denying their post trial motions.
In the instant case the sale was clearly in gross and not by the acre or by the frontage foot. Nevertheless, this does not necessarily mean that the Simpsons are not entitled to any relief on account of this deficiency. The rule against allowing relief for a deficiency where the sale is in gross is generally applied to situations where there has been an erroneous representation of the quantity of land encompassed by an accu- rate metes and bounds description, see, e. g., Birch-Brook, Inc. v. Ragland, 253 Ark. 161, 485 S.W.2d 225 (1972), and this rule has been held to be inapplicable where the metes and bounds description itself is in error and the seller is unable to convey all the property encompassed by that errone- ous description. Coppage v. King, 96 Ga. App. 192, 99 S.E.2d 541 (1957); Maxwell v. Redd, 209 Kan. 264, 496 P.2d 1320 (1972). In our view the Simpsons’ right to relief on the grounds of mutual mistake in the cir- cumstances of this case depends on whether the error in the legal description affected a material element of the bargain. See Annot. 1 A.L.R.2d 9, 73 (1948).
Although the sale was in gross and the Simpsons did receive the particular par- cel of land they intended to purchase, we nevertheless conclude that they did have a claim for relief. In our view the length of the lot‘s frontage was a material part of the sale. The record indicates that the Simp- sons purchased the property with the inten- tion of dividing it into two lots and selling one lot to help pay for the house they planned to build on the other. That plan, however, was frustrated by the deficiency in the lot‘s frontage. Although the Simp- sons apparently never informed the John- sons of their plan to divide the property, the record indicates that Mrs. Johnson told Mrs. Simpson that the property contained ap- proximately three and one half lots. In short, the record indicates that the assump- tion that the property could be divided into separate lots underlay the entire transac- tion. We conclude, therefore, that the error in the legal description affected a material element of the bargain and that the trial court‘s conclusion that the Simpsons had a cause of action against the Johnsons grounded on mutual mistake is supported by the record.
Although the trial court decided the case under the equitable theory of mu- tual mistake, we believe the evidence also establishes a breach of the covenants of title, a theory which was also alleged in the Simpsons’ complaint.1 In the warranty deed the Johnsons convenanted “that they are the owners in fee simple of said premis- es . . . .” By this covenant of seisen the Johnsons assured that at the time of conveyance they were lawfully seized of the estate they purported to convey. See 6 R. Powell, The Law of Real Property § 905 (1968); Annot. 61 A.L.R. 10, 42 (1929).
Having determined that the Simp- sons were entitled to some relief, we must now decide whether they are entitled to the remedy they seek in this suit. The Simp- sons rejected the Johnsons’ offer to rescind and sought money damages for the defi- ciency. In general, courts have permitted purchasers in this type of case to recover damages for the deficiency in land, see, e. g., Maxwell v. Redd, supra; Harris v. Ax- line, 323 Mich. 585, 36 N.W.2d 154 (1949); Gonzales v. Garcia, 89 N.M. 337, 552 P.2d 468 (1976); D. Dobbs, Handbook on the Law of Remedies, § 12.9 (1973), although some courts in analogous situations have restricted the purchaser‘s remedy to rescis- sion. Dlug v. Wooldridge, 538 P.2d 883 (Colo.1975); Moonves v. Hill, 134 Vt. 352, 360 A.2d 59 (1976). Under the facts of this case we believe the Simpsons’ remedy was not limited to rescission but they were enti- tled to pursue an action for damages. Al- though the trial court decided the case on the equitable theory of mutual mistake, the record also establishes a breach of the cove- nant of seisen and an action for damages is ordinarily the proper remedy for a breach of that covenant. See Maxwell v. Redd, supra; 7 G. Thompson, supra, § 3181; D. Dobbs, supra.
The Simpsons attempted at trial to establish by their own testimony that the market value of the actual property was $4,000 at the time of the sale and by their expert witness that its market value was $4,500. The trial court viewed the Simp- sons’ testimony as merely a standoff with the contradicting testimony by the John- sons. Although the owners of property are competent to testify as to the value of their property, the weight to be given their testi- mony depends on their background, knowl- edge and experience. Bancroft v. Smith, 80 Idaho 63, 323 P.2d 879 (1958). The Simp- sons had no particular background or exper- tise in the real estate business, although the record indicates that they had been shop- ping for a building lot in Cascade for some time, and the trial court did not err in giving little weight to their testimony.
We do not believe that the trial court erred in rejecting the opinion of the expert witness. It is well established that the opinion of an expert is not binding on the trier of fact and, provided the trier of fact does not act arbitrarily, may be reject- ed even when uncontradicted. See Roemer v. Green Pastures Farms, Inc., 97 Idaho 591, 548 P.2d 857 (1976); Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875, 92 Cal.Rptr. 162, 479 P.2d 362 (1971). Although the expert may have been qualified, we do not believe the trial court erred in disregarding his testimony because apparently he did not believe that the opinion was based on a credible appraisal of the property, which, after all, is the prerogative of a trier of facts. See Title & Trust Co. (Idaho Title Co.) v. Board of Equalization, 94 Idaho 270, 486 P.2d 281 (1971). We therefore affirm the trial court‘s judgment that the Simp- sons, having elected the remedy of damages rather than rescission, failed to meet their burden of proof in establishing damages.
Affirmed. Costs to respondent.
BISTLINE, J., and SCOGGIN and DOOLITTLE, JJ. Pro tem., concur.
SHEPARD, Chief Justice, specially con- curring.
I concur in the result obtained by the majority opinion.
I believe, however, that under the circum-
stances of this case the determination by
the trial court that plaintiffs were entitled
to proceed on their theory of damages was
error. The record is totally devoid of and
appellants appear to concede an absence of
any fraud, misrepresentation or over-
reaching on the part of the sellers-respon-
dents Johnson. On the contrary, the record
Under these circumstances, it appears to me inappropriate to impose on the sellers (Johnsons) a bargain different from that into which they entered; i. e., to force the Johnsons to sell the property for $4,000, rather than the $7,000 which they desired and demanded in their contract. The mis- take as to the frontage of the lot was evidently mutual on the part of both parties and resulted from an error in the public records. As indicated in the majority opin- ion, upon discovery of the error in the de- scription, the Johnsons offered to rescind the contract and return the money to the Simpsons. The Simpsons refused that of- fer. I believe at that point the Simpsons had made their election to keep the proper- ty, knowing of the deficiency in the descrip- tion, and they should be deemed barred from a claim for damages resulting from no fault of the Johnsons. As indicated in Barn- osky v. Petteys, 49 A.D.2d 134, 373 N.Y. S.2d 674 (1975), there was obviously no meeting of the minds of the parties to the contract and rescission under these circum- stances was the more appropriate remedy.
BAKES
Justice