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Show Wednesday; june 23, 1971 THE DAILY RECORD RAGE THREE In The Supreme Court Of The State Of Utah Marlowe Investment Corporation, Plaintiff and Appellant, FILED v. June 15, 1971 Zera D. Radmall and L. Gene Radmall, Defendants and Respondents. L. M. Cummings, Clerk USE THE DAILY RECORD FOR YOUR LEGAL NOTICES CROCKETT. Justice: Plaintiff, Marlowe Investment Corporation, sued to recover payments allegedly accrued on a uniform real estate contract by which the defendants purchased real property upon which there is a fruit stand in Pleasant Grove, Utah. Upon a plenary trial of the issues, the District Court made findings and gave judgment in favor of the defendants. Plaintiff appeals. Hie contract was entered into on April 20, 1963, by which the defendants agreed to purchase die property from Joseph E. and Isabella Bird for the sum of $7800, $500 down and $75 per month. The vendors later assigned the contract to plaintiff corporation. In the fall of that year the defendants had determined to give up the project. In November they so advised Mr. Lowe, managing officer of plaintiff. Defendant testified that he walked into the plaintiff's office just as Mr. Lowe was leaving and stated he was returning the property and the padlock to the stand. Mr. Lowe left, remarking that he was busy and to "tell things to my secretary. " Defendant explained to her that he was relinquishing the property and the contract and handed her the lock and keys. No disagreement with his proposal was voiced either by Mr. Lowe or the secretary. However, shortly thereafter the plaintiff filed an action in die Provo City Court for six months' "rent" on the property at $75 per month, a total of $450. Nothing was done in that action, and nothing further happened for over six years. In February 1970 plaintiff filed this action claiming $6000 as past due payments under the contract and attorney's fees in the amount of $1500. Meanwhile there had been a mortgage on the property to the Utah Savings and Loan Association, executed by the plaintiff. In April 1970 a suit was filed to foreclose the mortgage against the plaintiff, and also joining these defendants. Defendants disclaimed any interest in the property, not pointing out their relinquishment years earlier. The plaintiff here did was foreclosed. defend that suit and the mortgage In the instant case the trial court stated in its findings of fact: Cottonwood Mr. andMrs. Robert H. Tlncher Hospital Lark, daughter Hr. andMrs. Vardl Marlon Cook 625 E. 8100 S. daughter Mr. aid .... James V. Denney Mr 8 . 2887-2n- formance by the vendor. It is true that ordinarily such vendor purchaser has made his necessarily have to have marketable title until the or payments. Nevertheless, if it plainly appears that he has so lost his fulfill to able be not he will that his ownership or his title 1. See Woodard v. Allen, 1 Utah 2d 220, 265 P. 2d 398. red when contract, he cannot insist that the purchaser continue to make payments 2 This is be not parwill forthcoming. it is obvious that his own performance "the a contains provision that, ticularly true under the instant contract which default in the payment of not he will that and covenants further agrees seller his obligations against said property. " are not persuaded that there is anything inconsistent with prinnot be ciples of equity and justice in the ruling that the plaintiff should allowed to recover under these circumstances! where it had accepted from die defendant without objection the statement of relinquishment and die keys to the property in question, where it either knew or should have known that the defendants were assuming that they had relinquished the property and the contract, and were not in possession or making use of the property, and the own plaintiff sat by for a period of six years, then defaulted inorits losspayments was its been either lost, on the property until its ownership had of the to all a payments imminent, and then came forward and asserted claim contract. the under accrued that would have We The disadvantage to the defendants, necessary to the invocation of the 4 doctrine of laches against the plaintiff, is reasoned thus: if the plaintiff had not given the appearance of acquiescing in the relinquishment of the contract, aware but had insisted upon its performance, the defendants would have been as to of their continuing responsibility to so use or dispose of the property fulfill their obligations. Inasmuch as the trial court could reasonably believe that they were lulled into a sense of security, and thus put at a disadvantage to disagree with his refusal by the conduct of the plaintiff, we see no reason to allow the plaintiff to recover. FROM THE AMERICAN BAR ASSOCIATION I ME SERVE will 16 -- - Boston attorney Robert W. of the American Bar become president-ele- ct Association in July, said here tonight that many of the result of inadequate first major address since his nomination for Mr. Meserve urged members of last February, president-ele- ct the State Bar of Wisconsin, meeting here, to lead other citizens in responding to the needs of the courts. Unless there are enough judges and court rooms to meet i the ever-growi- need, he warned, our system of ng protecting the rights of the accused will rapidly disintegrate. Using his own state of Massachusetts as an example, he pointed out that the demand caused by the increased number of criminal cases greatly exceeds the supply of available judges, i facilities some 26,500 In Massachusetts, he said, and funds. criminal cases are He added that pending, an increase of 8,000 over last year. in one county alone, 56 capital cases are awaiting assignment for now trial, with to find a judge He prime who can jail "for the Chief Justice try them." also criticized lawyers "shows" for in 40 defendants waiting political purposes. who turn criminal trials into Instead of fulfilling their responsibility of favorably representing their clients, he said, these lawyers attempt to try the judge, the prosecution or itself. said that we will have to devise new methods in solving today's problems, but that the same principles which provided the foundation for past achievements and are "basic to Chief Justice our very existence as a people" must remain. These, he stressed, are "humanistic optimism rather than pessimistic defeatism, hard work and good will, and a faith in democracy and in a basic form of economic organization which preserves motive and opportunity to the individual, controlled in A. H. Ellett, Justice J. concurs in the result. the public Interest but not prompted and directed by government." I . FOR GREATER SUPPORT OF THE COURTS WIS., June DELAVAN, Meserve, who CALLS our governmental system R. L. Tuckett, Justice vf. D. Dlx Mr. and Mrs. Jack Thorup 1720 E. 7200 S., son Mr. andMrs. Raymond W. Short 1973 E. 4325 S., daughter Mr. Meserve HENRIOD, Bill East, son d Mr. and Mrs. Kim Stuart Dramer 2007 Stratford Br, son Mr. and Mrs Bert Chris Quarnberg 1355 Creed Rd, daughter In his trial court's analysis and conclusion are supported by sound of principles of law. The first relates to the subject of impossibilitydoes pernot a Jr. , Mr. andMrs. Provo, daughter Robert B. Young 3500 S. daughter W. to try cases of consequence." The E. R. Callister, 3340 of crime, and a shortage of lawyers and judges "really trained .... WE CONCUR: Mr. andMrs . financial support, lack of attention to the underlying causes plaintiffs in failing to pursue the case in the Provo City Court, the defendants were lead to believe that the plainThe plaintiffs tiffs had accepted die property back have by their conduct and by allowing its default to be entered in Civil No. 34, 427 the foreclosure proceeding! failed to discharge its duty under the aforementioned contract and to mitigate its damages Costs to defendants (respondents). Births problems now facing the courts are the Based upon die abandonment and die silence of the Affirmed. See Tremonton Inv. Co. v. Horne, 59 Utah 156, 202 P. 507; Leavitt v. Blohm, 11 Utah 2d 220, 357 P. 2d 190; 55 Am. Jur, 624, Vendor and Purchaser, Sec. 154. 3. That equitable principles may be applied in a law action see Art. VIII, Sec. 19, Utah Constitution; Rule 2, Utah Rules of Civil Procedure; see also Wasatch Oil Refining Co. v. Wade, 92 Utah 50, 63 P,2d 1070. 4. See Mawhinney, et al. v. Jensen, et al. , 120 Utah 142, 232 P. 2d 769. 2. No. 12280 kA , v ... .!,. 4 V |