A. Cushman Atkins and Wife v. E. F‪.‬

Plaintiffs, A. Cushman Atkins and wife, Beresha Atkins, (hereafter "Plaintiffs" or "Mr. Atkins" or "Mrs. Atkins") sued defendants, E. F. Kirkpatrick, his wife Janice Kirkpatrick, and Barbara Parrish, their realtor, (hereafter "Defendants," Mr. Kirkpatrick," Mrs. Kirkpatrick," or "Parrish," respectively), in the Chancery Court for Wilson County. Plaintiffs sought to rescind their purchase of a residential building lot, or in the alternative, damages. Plaintiffs sought relief on four alleged causes of action: fraudulent and negligent misrepresentation against the Kirkpatricks; negligent misrepresentation against the agent, Parrish; Parrish; mutual mistake; and failure of consideration. At the close of Plaintiffs proof Chancellor Edward M. Turner granted Defendants motion to dismiss all claims except that of mutual mistake, pursuant to Rule 41.02, T.R.C.P. Defendants rested the case without putting on any proof. The court found there had been a mutual mistake between the parties, but that the Plaintiffs had by virtue of the contract assumed the risk of loss.