McIllwain v. Bank of Harrisburg

Supplemental Opinion on Petition for Rehearing September 3, 1986

713 S.W.2d 469

Contracts — no assumption of obligations of contract •— no liability for portion of judgment. — Where a family trust did not assume any of the obligations of the contract in question, it is not liable for any portion of the judgment.

Lawson Cloninger, Judge.

In our original opinion in this case, dated July 9,1986, we held that since appellants, Margaret McIllwain and the Estate of L.E. McIllwain, had pled for specific performance of their contract with appellees Lohnes Tiner and Margaret Tiner, any duty appellants may have had to mitigate damages would not arise until there had been a judicial determination of the request for specific performance. Because the duty had not yet arisen, we reversed the chancellor’s decision to discharge the Tiners and Collinses from their obligations and found that they were indeed liable for damages in the sum of $389,215.80, which resulted from their breach of the land sale contract.

In a petition for rehearing, appellees L. Dana Collins, Barbara Collins, and the Collins Family Trust request that the trust not be held liable for any of the judgment since it was merely the title holder and had not assumed any responsibility to perform the contract. They also point out that when they purchased their interest in the contract from appellees Lohnes Tiner and Margaret Tiner, they only agreed to assume one-half of the obligations and they request that they be held liable for only one-half of the judgment. In their response, appellants agree.

We think it proper to supplement our original opinion by modifying the liabilities of the parties. Since the Collins Family Trust did not assume any of the obligations of the contract, it is not liable for any portion of the judgment. The Tiners and Collinses are jointly and severally liable for one-half of the amount of the judgment with the Tiners remaining liable for the full amount.

The petition for rehearing is otherwise denied.