Amonson v. Idaho Development Co.
| Decision Date | 26 February 1914 |
| Citation | 139 P. 352,25 Idaho 615 |
| Parties | A. C. AMONSON, Respondent, v. IDAHO DEVELOPMENT COMPANY, Appellant |
| Court | Idaho Supreme Court |
CONTRACT-ORAL CONTRACT FOR SALE OF REAL PROPERTY-REPUDIATION OF CONTRACT BY PARTIES WHO MADE THE CONTRACT-RIGHT OF RECOVERY UPON THE FACTS SHOWN IN THE CASE-LIABILITY OF AGENT OF THE PERSON SELLING PROPERTY WHERE A PARTIAL PAYMENT WAS MADE AND THEREAFTER THE AGREEMENT WAS REPUDIATED AND WAIVED BY BOTH PARTIES.
1. Where an oral contract was made by A. and the I. D. Co. being the respondent and appellant, for the sale of real estate, and the contract provided that the price was $900 and $225 was paid at the time the contract was made as a part of the purchase money, and thereafter a difference arose as to the terms of the contract, and both parties repudiated the contract and refused to rely upon the same, and thereupon this action was brought for the recovery of the money paid held, that the plaintiff had a cause of action against the defendant upon the facts and the law.
2. Held, in this case, that the record and the evidence show conclusively that there was no consideration for the payment of the sum paid, and the record does not show any right or equity for the claim made by defendant in his answer.
APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge.
Action to recover a part of the purchase price for certain real property purchased under an oral contract. Judgment affirmed.
Judgment affirmed. Costs awarded to respondent.
John H. Padgham and Arthur O. Fording, for Appellant.
It may be admitted that, since the case is within the statute of frauds, neither party could enforce the contract, because the written and signed memorandum does not sufficiently identify the property. But it does not follow that the plaintiff, repudiating the contract, can recover back the money paid. The contract, though not enforceable, is yet not unlawful. The rule is well settled: The purchaser can thus recover only upon tender of performance; if he repudiates, he cannot recover; a fortiori, when the vendor tenders performance, the purchaser cannot recover, but his loss is the price of his repudiation. ( .)
E. W. Whitcomb and Frank L. Plummer, for Respondent.
Appellant, in all ways and at all times, by positive and affirmative acts, refused to comply with the terms of the oral contract, and under such conditions respondent was not required to tender performance.
This is a case where appellant has repudiated the original contract and forced the respondent to bring action to recover his original payment. (Durham v. Wick, 210 Pa. 128, 105 Am. St. 789, and note, 59 A. 824, 2 Ann. Cas. 929; Welch v. Darling, 59 Vt. 136, 7 A. 547; 29 Am. & Eng. Ency. of Law, 2d ed., 838, note 1; Cabrera v. Payne, 10 Cal.App. 675, 103 P. 176; Wood v. McDonald, 66 Cal. 546, 6 P. 452; Monger v. Effland, 87 Kan. 710, 125 P. 46; Dudley v. Haywood, 11 F. 543.)
There are many cases which enunciate a rule far more favorable to the respondent than the cases above cited. (Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311; Flinn v. Barber, 64 Ala. 193; Nelson v. Shelby Mfg. etc. Co., 96 Ala. 515, 38 Am. St. 116, note, 11 So. 695; Reynolds v. Harris, 9 Cal. 338; Thomas v. Sowards, 25 Wis. 631; Tucker v. Grover, 60 Wis. 233, 19 N.W. 92; Collins v. Thayer, 74 Ill. 138; Allen v. Booker, 2 Stew. (Ala.) 21, 19 Am. Dec. 33; Johnson v. Hanson, 6 Ala. 351, 41 Am. Dec. 54.)
Clark, as appellant's agent, offered a sale of the lots without any conditions, restrictions or limitations in the title, while the appellant offered a conditional title. These circumstances alone would entitle respondent to recover the part of the purchase price paid by him. (
When there exists any testimony on which to base a finding of the court below, it will generally not be disturbed on appeal. (Brown v. Grubb, 23 Idaho 537-539, 130 P. 1073; Wheeler v. Gilmore etc. Ry. Co., 23 Idaho 479, 130 P. 801.)
This action was instituted by the respondent against the appellant to recover the sum of $ 225, with interest paid to the appellant, as part of the purchase price for certain real property purchased under an oral contract. The pleadings in the case allege the facts of the oral agreement at the time the money was paid. The court by agreement of parties appointed a referee to ascertain the facts and liabilities of the parties in the action.
The evidence shows that the appellant, in the latter part of August, 1910, through its agent, A. H. Clark, entered into an oral agreement with the respondent for the sale of two lots of land in Leadore town site, Lemhi county, Idaho, for the sum of $ 900, $ 225, or 25 per cent of which was to be paid in cash, and 10 per cent, or $ 67.50 per month was to be paid on the balance until the whole amount was paid. The amount of the purchase price and the terms of payment constituted the sole terms and conditions of the oral contract; later, the respondent called for some writing on the part of the defendant to evidence his interest and rights in the lots proposed to be purchased.
Some time on or about October 10, 1910, the appellant caused to be prepared and tendered to the respondent a written and printed contract for the sale of the lots in question, containing conditions regarding taxes, rents, kind of buildings to be erected upon the premises, etc., which plaintiff refused to accept on account of the limitations and restrictions therein, which respondent claimed were contrary to the terms of the oral contract.
Later, on or about November 14, 1911, the appellant caused a deed to the premises to be tendered to the plaintiff, containing restrictions and limitations which were not considered at the time the oral contract was entered into between the parties, and which were not mentioned at the time the $ 225 was paid, and when this deed was tendered the respondent refused to accept it. It is shown that the appellant has never offered at any time to perform its part of the oral agreement and has refused to comply with the same, and has at all times after the oral contract insisted on making a new agreement which provided for new conditions which were not considered or agreed to when the $ 225 was paid under the oral contract, and which the respondent has at all times refused to accept.
The trial court appointed A. C. Cherry referee, and the order of the court states:
"He is hereby required to take testimony and ascertain the facts necessary to enable the court to determine this action, and to make findings upon all the material issues of fact with his recommendation as to a judgment to be entered in said action and to return to the judge of this court the testimony taken, for final decision and determination of this action at chambers."
The defendant in its answer admits and denies as follows:
1. Admits that on or about the 30th day of August, in the year 1910, plaintiff and defendant made an oral agreement for the sale to plaintiff of lots 11 and 12 in block 7, of Leadore town site in Lemhi county, for the agreed price of $ 900--$ 225 thereof to be paid in cash and the balance in monthly installments of $ 67.50 per month until the whole sum was paid.
Denies that by said agreement there was to be no other expense to plaintiff than the said $ 900 in installments. Denies the terms set forth in paragraph 2 of plaintiff's complaint.
2. Admits that pursuant to an oral agreement set forth by plaintiff in his complaint, plaintiff paid defendant the sum of $ 225 as hand money and the first payment on said lots.
3. Denies that plaintiff requested defendant to perform its part of said agreement and to deliver to him a written contract in accordance with his alleged oral agreement. Avers that defendant tendered to plaintiff a contract, partly written and partly printed, providing for the payment of interest and taxes for the year 1910, which is plaintiff's exhibit No 2. Avers that the covenant in said written contract for the payment of taxes for the year 1910 was a mistake; such covenant should have been one for the payment of taxes for the year 1911, which mistake defendant offered to change by eliminating that item from the contract, as well as the item of interest, but plaintiff declined to accept the offer to so change said contract, and refused to accept such written contract on any terms, or at all. Defendant denies that the plaintiff refused to accept the written and printed contract for the reason that it was not the contract agreed upon; on the contrary, alleges that when said written contract was tendered to plaintiff, he refused to accept it on any terms or conditions. Admits that defendant refused to repay to plain...
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