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02/17/88 WILLIAM L. BAKER v. CRAIG E. TOWNSEND AND

Filed: February 17, 1988.

WILLIAM L. BAKER, JR. AND JULIE A. BAKER, APPELLANTS (DEFENDANTS BELOW)
v.
CRAIG E. TOWNSEND AND ROBIN TOWNSEND, APPELLEES (PLAINTIFFS BELOW).



Appeal from the Howard Superior Court II, The Honorable Carl E. Vandorn, Judge, Cause No. 7660

Shields, P.j., Buchanan, J., Concurs. Conover, J., Concurs.

Author: Shields

SHIELDS, P.J.

William and Julie Baker appeal the trial court's decision rescinding a contract under which they agreed to sell a tract of undeveloped land to Craig and Robin Townsend. The Townsend's cross-appeal, asserting the trial court erred in failing to award them their attorney's fees. We affirm.

FACTS

Townsends initiated this action against the Bakers to rescind a contract in which they agreed to purchase real estate on the grounds of fraud and the failure of a contingency. Bakers counterclaimed for the balance due under the contract. The trial court entered a judgment for Townsends and against Bakers on both the complaint and counterclaim. The facts relevant to the resolution of this appeal were found by the trial court as follows:

2. On February 15, 1983, defendants signed [a second] Exclusive Employment Contract with Larry F. Wells and Associates, Inc., listing [their] property for sale located at 250 S 350 W described as a "Lot" and as a "Vacant Lot Approx 2.25 Acres Corner of Co. Rd. 250 So. & 350 West" and as "Pt NW4 Sec4." This agreement also provided, "Owner can take listing off market if he decides to build and Larry F. Wells Agency does not have buyer for said property. . . .

6. Plaintiffs made an offer to purchase said real estate for the sum of Twelve Thousand Dollars ($12,000.00) dated February 20, 1983, which was accepted by defendants on February 21. . . .

7. A soil report was filed with the Howard County Plan Commission on or about March 15, 1983, which provided that subsurface drainage would be required for this real estate.

8. The said real estate could not be drained without a subsurface tile drain draining the water across land owned by others.

9. Without said subsurface drainage this real estate cannot be approved for a subdivision lot on which either a septic system or a house could be built. . . .

16. On March 26, 1983, the plaintiffs and defendants executed the contract, plaintiffs' Exhibit A, and paid the Four Thousand Dollars ($4,000.00) down called for in the said offer to purchase. At said closing, the said contract was read and explained to defendants. Said contract dated March 26, 1983, contained the following contingency:

"This contract is contingent upon obtaining a permit from the Health Department for the building of a house, well and septic tank."

Plaintiffs thereafter paid to defendants installment payments totalling One Thousand Eight Hundred Sixty-Nine Dollars and Seventy-Eight Cents (1,869.78) and have tendered into this Court the sum of Six Thousand Eight Hundred Fourteen Dollars and Ninety-Nine Cents ($6,814.99).

17. A permit to build a house is issued by the Howard County Plan Commission, but such a permit cannot be obtained unless as a condition precedent the Health Department of the county first issues a permit for a septic system. Therefore a building permit cannot be obtained without the appropriate permit first being issued by the Health Department. The contract is construed as being contingent only upon obtaining a well and septic permit from the Howard County Board of Health, thus making it possible for plaintiffs to obtain a Building Permit thereafter if they desired.

18. There has never been issued on this real estate a permit for a septic tank or system, nor a permit for a well, so that a permit for a building cannot be obtained and for [sic] contingencies contained in both the offer to purchase and the contract dated March 26, 1983, have not been fulfilled.

19. The stated contingencies are not based upon the "ability" to obtain said permits and the contracts do not specify who is to obtain the permits. Either party could have obtained said permits.

20. A reasonable time for the obtaining of such permits to fulfill the contingencies was the period of time prior to February 24, 1984, when the entire ...


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