Ewing v. Bissell ( 1989 )

Mowbray, J.,

concurring in part and dissenting in part:

Respectfully, I dissent from that part of the majority opinion declaring that the Ewings are entitled to an abatement. In this case, there is substantial evidence in the record to support the district court’s decision that this was a sale in gross rather than a sale per acre. The parties negotiated for the purchase and sale of a residential lot, described as approximately 1.34 acres for a price of $22,000. The Ewings were interested in the specific lot because of its location next to their friend Herb Roman. The price expressed was for the lot in gross not per acre or square foot. Moreover, the Ewings expressed their desire to keep the lot and not rescind the contract. Therefore, I would affirm the district court’s decision that the Ewings were not entitled to an abatement. However, I concur with the majority, although for different reasons, that the award of attorney’s fees should be reversed.