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Cherry v. McCall

Texas Court of Appeals
138 S.W.3d 35 (2004)


Robert Cherry and Maria Cherry (plaintiffs) purchased a home from Brian McCall and Rebekah McCall (defendants). The contract for the purchase of the home stated that the Cherrys were buying the property “as is” from the McCalls. After the purchase was completed, the Cherrys discovered a walled-in room in the basement. The room was contaminated with mold and was filled with trash, including plumbing fixtures, boards, pipes, rocks, and used building materials. The Cherrys sued the McCalls, seeking a declaratory judgment that either (1) the McCalls breached the contract or (2) the existence of the hidden room qualified as a mutual mistake justifying rescission of the contract. The trial court granted summary judgment to the McCalls, and the Cherrys appealed to the Texas Court of Appeals.

Rule of Law


Holding and Reasoning (Angelini, J.)

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