OCR Text |
Show THE MONDAY, DECEMBER 14, 1970 DAILY PAGE RECORD The plaintiff testified that the defendants had later told him that they want to sell, "he Mr. Cnndr.ick told me that hir wife just wasn't didn't just interested in selling the house. was unenforceable because it was (a) given without consideration, (b) not properly exercised, and (c) not definite as to terms. Upon a plenary trial, the district court found the issues in favor of the plaintiff and ordered the defendants to convey him the property upon the payment of the price ($23,500) stated in the contract, less some deductions not material to the ..." Mr. Condrack himself testified: issues raised here. were concerned at that time. We had one hoy on a mission and we were planning on another hoy going on a mission and we were trying to make sure that we had a home for them to come home to. We Although this court may review the facts in this case in equity, it should be kept in mind that we may do so in the light of the evidence as believed by the trial court, and not necessarily as urged upon us from the point of view of the defendants. Plaintiff Kier is a contractor who desired to build apartments in the area of defendants' property. In December of 1967 the parties entered into a contract whereby he purchased the west 120 feet of the Condracks1 property for the sum of $3,000. In connection therewith the parties discussed the sale of the remainder of the defendants' property, which would include their home and involve considerable more money. The plaintiff was hesitant, stating that he "did not want to bite off more than he could chew, but asked if they would give him an option, which they agreed to do. The parties simply dispute each other as to whether the transaction was so integrated that the entering into the mutual obligations of the contract and the payment of the $3 ,000 for the west tract was also consideration for the option on the east and further: Q. Will you take $23, 500. 00 cash? A. No. sir. Q. Will you take $23, 500.00 on a contract of sale that gives Kier the option to prepay it at any time without penalty? A. No, sir. Q.. What penalty do you want to exact from Mr.- Kier? - 11 A. No Q. What is it you want in addition, Mr. Condrack? A. All penalty. I - want is a monthly payment. tract. over twenty years. For the purpose of analyzing defendant's first contention, that no consideration was given for the option, we assume for the moment the correctness of their contention that the contract is uncertain. The trial court could then look to the circumstances and the testimony cf the parties to ascertain what appeared to be their intent and determine their obligations based thereon. In addition to their own testimony, the strongest point in defendants' favor on this first contention is that the plaintiff acknowldged that the price for the west tract was $3,000 and that he on would have bought it for that price alone. Nevertheless, he insisted that in connection with the purchase of the west tract, the parties discussed his desire to buy, and the defendants' willingness to sell, the east tract; and that the whole deal including the option thereon was regarded by the parties as one transaction for which the signing of the contract and the payment of the Q. cross-examinati- A. 90 on $3. 000 was consideration. This finds corroboration in the further fact of significance here: that the transaction was all included in the one contract, which recited the mutual promises the parties made to each other, and which contains this provision: Sellers grant to Buyer the option to purchase the balance cf sellers' property. 85 feet by 150 feet approximately, contig- days prior to the expiration of the option), "Please plaintiff Kier sent a registered letter to the defendants " stating. offered to Plaintiff be advised that the undersigned exercises said option. "cash-outof their equity, by " pay the defendants what would amount to a or, two mortgages balance the 37 in 302. cash, plus assuming paying them $5. inon the property, which would aggregate the $23, 500. The defendants dicated no willingness to accept this proposal. They contend that the letter because plainwas not an exercise of the option, but rather a counter-off- er not tiff therein proposed a method of payment of the purchase price. This is was to be made necessarily so. The agreement " stated that the payment was There nothing wrong in plaintiff "upon terms to be agreed upon. was unequivocal in stating that suggesting a method of payment. The letter the plaintiff exercised the option, and it did not condition the exercise of the the plaintiff. On or option upon the acceptance of the terms proposed by themabout May 31, the parties met to discuss the matter. The defendants retain would that was of each they selves made several proposals. The basis installments plus title for a period of 12 to 24 months, with payments of as "cash-out- " by for their the proposed equity would accept interest; or they to their continue could occupy that they the plaintiff, but on the condition home for 24 months with free rental. Plaintiff refused these cffers on the him would groundthat they would impede his development plans andor to compel the for take to pay more than the $23, 500 which the defendants had agreed Q. Give us title? A. No, sir; we will hold title. know. and authorities therein cited. (thus Under this condition we will give possession within days. At the time we just sent our boy on a mission and I had my girl to finish high school and, well, she is kind of funny, she does not like to be torn up over night, you 11 For the reasons stated above we do not see anything unreasonable about the trial court's conclusion that there was consideration for the option. You want him to pay? A. Utah Const. Art. VIII. Sec. 9. providing for appeals ". . . in equity cases the appeal may be on questions of law and fact . . . . See Nckeo v. Continental Mining & Milling Co. , etc. , 6 Utah 2d 177, 308 P.2d 954. Trust Co. v. Bybee, 6 Utah 2d 98; 305 P. 2d 773, 2. See Continental Bank uous to the above land for the sum of $23, 500.00 on payment and terms to be negotiated provided the same is exercised by June 1 , 1968. This can be taken and Mrs. Condrack testified: 1. On May 15, 1968 SEVEN I 1 I I We do not overlook the possibility that there may be seme situations where an extended installment contract might be something particularly desired by the seller, nor that if such appears to be the case, his interests should be properly safeguarded. However, in this instance there was nothing in the negotiations nor in the contract to suggest that that factor was to be considered in this transaction until after the defendants had changed their minds. In the absence of any such indication, it seem: a fan assumpof their tion that the plaintiff's offer to pay the sellers the "cash-out- " would have satisfied any reasonable person who was interest in the property willing to fulfill hi3 commitment. Moreover, when the plaintiff offered to pay the entire purchase price in cash, that is. to pay off the defendants' equity, and to pay off the mortgages, and the defendants refur.ed. making the statement that "This can be taken over twenty years," the trial court was justified in believing that the defendants were not acting in good faith but were simply offering excuses to justify their refusal to honor the plaintiff's exercise of the option because they had changed their minds about their agreement. It was therefore within his prerogative as a court cf equity to decree what equity and good conscience required: the specific perform-- I ance of the contract. 15 property. the defendants that recognize the validity of the rule relied upon byin its terms that the definite to be enforceable a contract must be sufficiently 3 all rules, which are neceslike But of them. parties know what is required in the proper circumstances, sarily stated in generality, it is only applicable to protect a party from an a shield where the justice of the case requires: as to perpetrate an injustice. Under injustice, and not as a weapon with which not convinced that the evidence and the particular facts of this case, we are was taken we should disagree with the view of this matter which it is apparent had reached agreement and committed by the trial court: when the parties defendthat themselves on the major aspects of the transaction, that is. of the if ants would sell and the plaintiff would buy at the agreed price $23. 500, die plaintiff exercised the option within the time specified, reserving only faith in keeping the "terms" of payment, they should be obliged to act in good to and permit a seller to unjust their promises. It would seem inequitable and seek specious excuses in an simply refuse unreasoningly to perform to terms of payment could well attempt to justify his refusal. The reference to be handled be regarded in this particular situation as incidental details, We and Cf. Ansorge 3. SeePitcherv. Lauritzen, 18 Utah 2d 368, 423 P.2d 491; v. Kane. 244 N. Y. 395, 155 N.E. 683. D.C. 383, lbF.2d 56 4. See Morris v. Ballard. District of Columbia. Si App. Realty Co. (New Jersey), 175, 49 A. L. R. 1461; Volk v. Atlantic Acceptance 2d 1230. 139 N. J. Eq. 171, 50 A. 2d 488, 68 A. L. R. in a manner agreeable to the parties, to give the buyer a reasonable opportunity to obtain the money, and to assure the sellers they would get the amount of to use the reservation money promised. But neither party should be permitted of "terms" to get more than they had promised: the plaintiff to get more land, or the defendants to get more money, nor either to renege on the bargain, as it appears that the trial court believes was done here. Affirmed. I Costs to plaintiff (respondent). CONCUR: R. L. Tuckett, Justice HENRIOD, Justice: (Concurring in the result) I concur in the result. It is obvious from the record .that defendants had changed their minds between the time they signed the uniform real estate contract to sell part of the tract, and the time plaintiff exercised the option. It is significant that the option here was not quite the conventional one ordinarily used. It was incorporated in the contract that sold part of the property, and after considerable discussion wherein defendants appeared to be agreeable to a $23. 500 sale for the other part of the property, crystallized then and there, except that the plaintiff felt and said at that time that he did not desire to bite off more than he could chew. I think the evidence reasonably was convincing that had the plaintiff had $23. 500 at that time there would have been a ready deal and no appeal to this court. It is also significant that in the very contract containing the option, the portion of the tract sold was on a monthly payment plan, without interest. It would seem clear, therefore, that the defendants were not so interested in interest at that time as the author of the dissent is now in their behalf. The monologue about interest in the dissent is but academic and bookkeepish, since, under the decree of the lower court, with which plaintiff is willing to comply, defendants would get $23, 500, which, could be invested with an 8 profit if put out at the dissent's going rate of a on the defendants' equity in the property, profit on one of the mortgages and 2 profit on the other, about which the dissent dwells 30 considerably. 8. 2-- 34 The defendants did not take any position to the effect that the option provision was void for uncertainty or for any other reason, since they in-undulged in negotiations with plaintiff in extenso, ad absurdum, when they reasonably demanded the $23, 500, to which they had agreed, plus two years occupancy obviously worth at least $4,000, plus the use of the $23, 500 for two years, interest free, which according to the dissent's 8 going rate, would amount to about another $4,000, - which obviously is tantamount to an increase in the purchase price of $8,000, - which obviously is a 34 increase. - which obviously is a ridiculous, unreasonable and unthinkable demand under the guise of an effort at negotiation. I have no quarrel with the general principles and authorities cited in the dissent, - only in their applicability here, both on principle ard factual differences. If equity cannot step into a case with circumstances like these existing here, then a plague on the institution of equity whose professed purpose is to carry out the intentions of the parties, which are unavailable in the ordinary court of law. r I |