HomeMy WebLinkAbout1867 i
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The aecond is~su~a per~aai~s to whether tho Plaintiff,
STEVE i,~;3N, in the proouxance of the aontract, ~ made false
representa~~.ons of n~terial facts to Mrs. Jaeobsen whivh would
_ enab].e her to avoid the b3.r~ding effec~ o.f the agraement,
~ In this regard, it 3.~ a~serted by Defendant; ~hat the ~
Plaintiff, STEVE ~,INN, falsely represented to Defendant that he
was a friend of a m~n named McDonald, ~rho owned land situate
ooni:iguous to the~sub3eet properties. ~ -
The evidence is in diametriQ aonflict on this poi.nt and
does not preponderate a.n favo~ Qf a find3.ng that hs stated that .
= he was a friend of McDonaldts as opposed to the str~tement that
- he heard of the property through MeDonald.
. Moreover, in light of all faetors bearing upon this
~ phase of the negotiat3ons,~and particularly the fact that this ~
objection was not timely raised by the Defendant after she dis-
~ covered that STEVE LINN was not a friend of i~cDonaldts, suQh.a
- represent~tion ca~not be regarded as material misrepresentation -
which ~tould justify abdication by Defendan~ of her re~sponsibilit ~
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. under the~contract. ~ ~
:The additional assertion is made that the Defendant,~
- GLADYS_McCARTY JACOBS~N, intended to sign the agreement in her
individual capacity only and not in her capac3ty as Executrix
. of the Estate of Brian MeCarty. - ~
. This position is ~ontroverted by the unequivoCal con-
- ~ cession of the Defendant that she indeed intended to sign-the
agreement in her fiduoiary cap~city, _A-letter from her attorney
. to ths attorney for Plaintiffs further demonstrates that it was
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_ the Defendantts intent to become bound in the capaca.ty of _
- , _ - Executrix.= - _ -
. ~ Accoidingly, the Court f3.nds that the con.traat in _
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_ question was binding upon the Defendant 3.n her capacity as .
- Executr.;~x ~f the Estate of Brian McCarty, deceased. It is
_ furth~r noted in this Tegard that under. the te~~is and provisions
- _ of the I,ast Will and Testament of_Brian McCartq, th~ Defendant
- was given the unrestricted authority to sell estate realtq
~ without l~ave of Court. _ ~
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