Alexander v. Brown
| Decision Date | 23 April 1982 |
| Docket Number | No. 17339,17339 |
| Citation | 646 P.2d 692 |
| Parties | John M. ALEXANDER and Helen Alexander, Plaintiffs and Respondents, v. Lee Dell BROWN, Glen F. Brown, Wayne L. Brown, and Warren D. Brown, partners, dba BLW Company, Defendants and Appellants. |
| Court | Utah Supreme Court |
Ronald R. Stanger, Provo, for defendants and appellants.
Craig M. Snyder, Provo, for plaintiffs and respondents.
Defendants, through their agent, Boyd Sorensen, sold plaintiffs a subdivision lot in Provo. The recorded subdivision plat positioned the subject lot adjacent to a main road to the east and a side road to the north of the lot. Plaintiffs chose the lot from among several in the subdivision because they planned to build a house with a garage opening to the side rather than to the front and they needed a side road for convenient access to the garage.
Sorensen prepared on behalf of defendants an earnest money receipt and offer to purchase which listed improvements to be performed by defendants including "Sidewalk," "Curb and Gutter" and "Special Street Paving." After plaintiffs' purchase of the lot, defendants paved the main road to the east and constructed curb and gutter there but made no improvements on the area shown by the subdivision plat as a side road.
Provo City regulations require that all roads shown on the plat for defendants' subdivision be improved. Plaintiffs testified that they expected the city to enforce this requirement against defendants, but this did not happen. Four years after purchasing the property, plaintiffs brought this suit against defendants, alleging that they had agreed in the earnest money agreement to improve both the main road and the side road bordering plaintiffs' property and that they had breached the agreement. Plaintiffs were awarded $4,500 in damages, which the court determined to be the cost of making the necessary improvements to the side road at that time.
Defendants appeal the judgment in favor of plaintiffs, arguing first that the earnest money contract was ambiguous in its designation of the improvements to be made by defendants. The pertinent language of that contract reads:
The following special improvements are included in this sale: ... Sidewalk , Curb and Gutter , Special Street Paving , ... Legend: Yes No except the following(:) no exceptions.
The phrase "special improvements," reasonably interpreted, refers to all streets bordering plaintiffs' property. In drafting the agreement, defendants' agent knew that the property had been advertised in the newspaper as "fully improved" and that the subdivision plat included a side road next to plaintiffs' property. Any intention to exclude from defendants' covenant the improvements pertaining to the side road is wholly inconsistent with the insertion of the words "no exceptions" at the end of the "special improvements" provision. The trial court correctly found that the contract is unambiguous in describing defendants' obligation to improve the side road.
Defendants also contend that the earnest money agreement was not integrated and that it was not intended to apply to the side road. In Farr v. Wasatch Chemical Co., 105 Utah 272, 143 P.2d 281, 283 (1943), this Court discussed the criteria to be used in determining whether a given subject was intended to be covered by an agreement.
In deciding upon this intent, the chief and most satisfactory index for the judge is found in the circumstances whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element; ...
The subject of street improvements is certainly "mentioned, covered, or dealt with" in the earnest money contract of the parties. Applying the Farr v. Wasatch Chemical Co. criteria, we therefore conclude that "the writing was meant to represent all of the transaction on that element." The trial court properly refused to consider extrinsic evidence in contradiction to this integrated agreement.
Defendants next argue that damages should be measured by the cost of road improvements in 1973 when defendants' performance was due rather than in 1980 when judgment was given. The trial court awarded plaintiffs $4,500, which it found to be the cost of paving the side road and installing curb, gutter and sidewalk at the time of judgment. The court based its cost estimate on actual costs incurred by plaintiffs' neighbor for equivalent improvements in 1976, evidently determining that the 1980 cost to plaintiffs would be comparable. Defendants maintain that even the award of 1976 costs is excessive and that damages must be measured at the time of the alleged breach rather than at the time of trial.
Damages are properly measured by the amount necessary to place the nonbreaching party in as good a position as if the contract had been performed. 1 The trial court correctly applied this rule by awarding plaintiffs the reasonable cost of finishing the side road at the time of judgment; any lesser amount would have been insufficient to restore to plaintiffs the benefits which they would have obtained from performance. The court's use of 1976 costs to calculate 1980 damages certainly did not result in an unreasonably high damage award. Defendants, who chose not to perform their obligation when costs were lower, cannot now complain about the increased cost of performance.
Defendants argue that plaintiffs should have mitigated their damages by having the road paved at their own expense during a period when paving costs were lower. However, plaintiffs had no obligation to mitigate damages by taking action which defendants themselves refused to take. Defendants had the same opportunity as plaintiffs to decrease damages by having the road finished promptly, yet declined to do so. Where the party having the primary duty for performance has the same opportunity to perform and the same knowledge of the consequences of nonperformance as the party to whom the duty is owed, he cannot complain about the failure of the latter to perform this duty for him. 2
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