OCR Text |
Show PAGI FOW RECORD THE DAILY WEDNESDAY. JAM ARV 9. 1974 In The Supreme Court Of The State Of Utah Robert D, Davison, er al , Piaint n's and Respondents, and description of the land may be de:.riio'.y 13) IT FILED No agreement I, M parties. othn u-p- i de-- t , 'ft r::. ntd w wii'-r- prov rit-- s any h.rther that thf a .v ayrcc ri port by to tu piece of property to be ionvrved e , the mode prov.ded lor t? t Sen i.n and rlc i.pt'un of t i .,Cl.t the :t in t of thr i h;..-- .o'irt and in ii.ture agreement paM.cn concluded thar the writ.nj; eonsilt.itid a va'.id ai:d iivi.n r.li (iniiJiii.-if- i the agreement prov ded that the vendee va to ic .n t t! i and w.:h:n a 'ven time . and r.ot'.Ing more lad to tx at;tffd i.pon lie two c. n pt rt'f i9-P Id m .i I. 2 Utah id 30", 2 4S M.nn vH 44 N- W 10. nM"0i. part:-- . alar the. parties- 21. 1973 December of the In tr r Gumming s, CU rl I - ! Arnctd B. Robbint, et al. Defendant and Appellants. si "l i . i - CALLiSTER. Chief Justice: instant action, il,f drcemont n i car ar.d unambiguous terms the .Oecat.on and decr:pl.on o! tic ,.ind to he conveyed w.i- - .! that provided theIh.s wr.rnn c oYist tutor: .i c.i lu' i. re mutual agreement oi the partes id evpress.on o! a purpose '.o make a contract . n tic' int.. re, lor the- wlio.c ::i.t" was contingent on further negotiations. The ti a court orrod .n us i urn m sion that the writing constituted a valid. enior cah.c ii.mr.vt. In t) t initiated this action seeking specific per formanc: of in a real estate contract and rccipt for deposit, denominated AuniMTK?nt, i an wh.ih. dp end is had signed. Upon trial before1 the court, .i decree ordr-.nspecific pen'oimance was entered. Defendant appeal therefrom Pia.nutl - - g are residents of Utah, are owners a joint tenant a real property situated near Duchesne. Utah- Plaintiffs are ui lerta-.ros.;dent of California. During September, 1470. while visiting Duchesne, pla Miffs discussed purchasing defendants real property al the price of )90 per acre. In October, plaintiffs ordered a prel.minar title report irorn Stan!e t Sons. Inc., of He be r City, Utah. On Nuve:ntie.r 20. 1970, plain-tiireturned to L'rah with a California real estate broker Roy Vckcry. fo the purpose of executing a purchase contract., Tie tra; court tound thai nit. ally defendants had expressed a willingness to sell all the properly, but to execute an agreement with such provisions and express defendant: rciu-sca desire to reserve from the sale a parcel encompassing the bottom ;ann " Pia.nt'ii's, rh.eir agent, Vickery, and Mr. Robbing rave!ed to the Subject property, where Mr, Robbins indicated the boundarfes of the area he w.shod to reserve. The witnesses for plaintiffs testified that Mt. Robbins poises' to certain fence lines, posts, and U. S. Highway 4i' to delineate ihe property to retained; Mr. Robbins vigorously denied th is testimony, dut he ffndirgj of the trial court reflect a belief in the plaintiffs' version of '.he transaction. Mr. Vii.kery thereafter drafted a document which lW defendants signed. Plaintiffs delivered a copy of the agreement, together w:r d d eck lor who Ifefendar.tN, i c; I.nsutfct sent and void on its face. d- momisment n referred to in the writing, nor .s any well and known point, place, or loca 'y dc sir. bed or used ge r.cr a. The evidence to be introdu- ed wovi.d not be that ot as .den'.. ;,i a'.'on of a description good on i's :ace. b.t it would lie for tie p..rpo:?p of supplying, complct nu anrl perlect'.ng a description on .is face insufficient and m spable ot appl'ca-tion'; i 1 ltsl e acre. found the contract valid and enter ct aulr ai.dt-- t j ; I ir-tif- fs - it.'' lie agreeir.eni signed by the parties was a standard printed form, wh.ch. ndicated by its language that it was designed lor use m California. Roy Vvckery, a California rea'. estate agent., was brought by p. a i miffs to this state to complete th. s form. In the apace prov.ded sot a description of the property, the to'.' owing was . P.'nher c, Lauriten'' this court r.. d ihat a contract io in propert lacki d certainty, and the court con d not compel The. wh w.m. did not .0 ih t'ormance thereof contract certa.nty provide acres o! thr- defendant's tract of 8' acres were to in conveyed to ia.i.t in r spt-c.- ! 1 land to ho conveyed f .nstar.t action, the description oi . Insuii. i. ent. and the trial ourt erred in .ts He. tec i oiiipe1 Minfi pec.:.i i.rt .s reversed, arid tl per ioru.an. e T he judgment ol the distr.ct Is ren.nnded fur disposition in accordance w :l t! . v. n on. Co' - art in :! -- tf-- . i i 3. Anen v. K.tchen, liiooK. v A Idaho 1.33. 100 Pac i0- S A fd 28, 244 Cal. Rptr ibfi. Corona nM d . I) lr I ,t! Rivers.de Co..r.tv Velar, i.S C. A- 2d ;ni . Mi V. 11 i'J4 -.342 2d A. 27b 2d v. 'lorl.n P. Herrmann 22. C Rennet, 441. 3b4 P. 2d d Ci)l Meariowlark Inve strnont Cm pornt inn v CrtM 5 S i, .92 P 2d 32? (;9i,4) 4. Nole i. supra, at p. 1055 of 100 Pac. 5. 18 Utah 2d Mb, 423 P. 2d 4'.?1 1 - C Scl-oo- 1 . -- r: I t c! ' I ;',-,i- - licjr l!r awarded to defendants. written: WE CONCUR: destr 'pt.cn to be prepared h licensed civil engineer for equally by both a;ter survey ordered by se er and a hereto, and be:ng sos.d consists of approx. ISO acres piitt.e 00 the on at $90 acre exact net per se..ing acteage delivered in e s'Tow, iega. - . - ih were entitled to specific performance. The tr.a! ift.rt dfrrrrt i ti land to be conveyed was as described in the pre'-rrir ;it'- rcpoii ci.cpt for the area reserved, which was described by the .ar.d .,r k j identified tf e witnesses for plaintiffs. The court ordered tr.at u .rve be to '.letter mine trie net acreage to be conveyed to plainti.'fs. On appeai, defendants contend that t e '.sr.d to be i onveyed was not de scritxd w.ih .em certainty to perm.' spec:: periormance, and that t e tr.di cosif erred In admitting paro'. evidence to ascertain defendants' .mer.t.cn to reserve certain land within existing landmarks. Defendants .a j in that the cort mod. tied the vontract under the gu.' se of construe tion Allen v. Kitchen4 is appliv&bie to the instant act. on: case at bar, there is no referer.. e to any record a comp'ic'to or external or extrinsic description froin w: ' rlption could be had, and no natura ob'ect or permanont - trial court "n In the Under the terms of the agreement, defendants were to oidft a vnvey o: the property to determine the net acreage to be convey d after ciedu(ion c.i tie reserved area. According to the findings of iar.'i. S'ar.Wy contacted . Im I defendants on numerous occasions to request that the survey ue deiendants responded that they were unable ro procure a survey riW tt- aty Te weather conditions or the unavailability of surveyors. Approximately six or eight months later defendants refused to perform, claim tag that t e y had never agreed to sell the property, or, in the alternative, that under the arecnv nt they were entitled to reserve as much acreage as trev desired- Pi lor to defendants indicated that they had elected to reserve iron; the sa-- alt of tVi ' " The statemenr The to Stanley & Sons, Inc., of Hebe r C:ty, the designated t scrow AJont. Ihe (hek has remained in Stanley's trust account, penning c duple ion n cl per lor nuance of the contract. one I : -- 41. 000, property except for I i evidence for the purpose of identify. ng the iand de c r Ihed and appiy.ti th description to the property and that of supplying and add.ng to a descr.pt. on I - ti Paroi evidence is admissible to app y. no, to ppiy. a de sc r Ipt .c.i: ci !and ,n a contract, Paro'. evidence w!.. no: he adn ttcd to lomp.cii a eh it was made deieci.ve description, or to show the intent. on w t. Ho lt script' on conta.ni-n tnc v iijc may be used for tre purpose of In tli wr.t.ng wltli its location upon the ground, b. not ior tho )'irpi.--c u; arifi asierta.n.ng and lo.atng the land about wh:h the part.ns noijot'atiih.o a which writing they have cmi.'ted irmn supp.y.ng description thereof There is a clear distinction Iet ween the adin.ssion oi orai and i'tr'n . - t - is i Irther contend thai the aitrec mor-- dn not di scr.in with be sufficient certain! to support a doi roc o: reserved to property xi iorrnance and the trial court errtil n udiii'i'. .iiv; parol ov.di spec.) 'o c.urf th.s deiect.xe description. Defendants - d pa-I- in a spate provided for other terms, F. Henri Henriod, Justice the following was written: A. H. Property in question is briefly described in preliminary title report No. U 102434. Schedule A, issued Oct. 24, 1970 by Stanley and Sons, Inc. of He be r City, Utar , less any acreage reserved by scHer. Offer contingent upon buyers approval of net acreage de script' on and grant deed executed ar.d deposited :n escrow- - (Emphasis added, R. L. Tuekett, Justice J Detendants urge that the terms of th agreement are clear and unambiguthe and must deterirrne the intention of the part es as expressed ous., within tie lo:.r coiners of the doi ..mem. Deiendanfs were granted the right to determine the amount of the acreage they desired to reserve, and plain tiffs were granted the right. to reiuse if they disapproved of the net acreage. Defendants contend that such provisions const;! .te mereiy an agreement to agree in the future. Defendants cla'm that the tr.a'; co..rt erred in admitting paroi evidence Indicating defendants' Intention to reserve certain land within existing landmarks, an intention contrary to that expressed within the agreement. Deiendants persuasively assert that if the parties had intended the area to be reserved was to be delineated by the suggested landmarks, such could have been expressed in the agreement. Instead, plaintiffs' representative, Mr. Vickery, drafted the agreement, .eaving the matter of the reservation of the acreage open to future agreement. J., concurs Crockett In Ca.der v. Third Judicial D: strict Cocrt, 1 the vendor counter claimed for specific performance of a contract, wherein the-- vendee was to select 200 acres ot land from a larger tract which was sufficiently described. The issue was whether the descr.'ptlon was sufficient so that there was a valid contract which could be enforced by specific performance. This court cited Scanlon v. Oliver,.2 wherein the court eplained the relevant d'stinctions between two types of cases. In one, the contract grants one party the exclusive right 'of selection, and the contract thus provides a definite rneqns by which the location . , . in result .. FINANCING STATEMENTS co-.:r- t n Eliett, Justice 711 - Ellas 'Morris & Sons Co. 2200 S. 7 E. SLC to Ellas Morri & Sons Profit Sharing Tension 1401 S. 6 W. SLC to Wheel Mach. Co; forklift Trust; 719 - Cordon and Lurainne5149 Leisure- Lanu, and Son's Co. to Walker Trust; equip - Norma Jeanne & Mary Ann Clayton, 3554 Alan Ave. SLC to Avco Fin. Ser; cons gds - Reed W. and Louise C, Everett, PO Box 99199 SLC to Nationwide Fin. Corp; hhg 721 714 - Scott G. and Annette Foulger, 1443 Roberta St. SLC to Comm. Cr. Flan, Inc; hhg 722 - Larry W, and Eva Harmon, 1407 A Murphy s Lane, SLC to Nationwide Fin. Corp; hhg - Kenneth and Beverly B. Crockett, 6899 S. 455 E. Mdvl 715 - Davidson Lumber Sales, Inc. 145 W. Central Ave. SLC to Material Handling Equip Co; 728 to'Emp. Cr, Un; organ - Strevell-Patterso- n Sliur-t- z, to Beneficial Fin. Co; lilig 720 - Andrew J and Lialiona Sop-k- o, 308J Am. Park, (irngr to Nationwide Fin. Corp; golf club Bk 713 716 - Kc-arn-s - 712 - Enoch Smith 1443 Beck St. SLC er Coi . forkllfe .......... ,. v i |