Associated Developers Co. v. Infanger
| Decision Date | 02 October 1962 |
| Docket Number | No. 9065,9065 |
| Parties | ASSOCIATED DEVELOPERS CO., Inc., a corporation, Plaintiff and Cross-defendant Appellant, v. Ray E. INFANGER and Vera S. Infanger, husband and wife, Defendants and Cross-plaintiffs, Respondents, v. Arthur HALL, Rex Eaton, Sterling Sigman, Clifford Miller and Karl V. Nilsson, Cross-defendants. |
| Court | Idaho Supreme Court |
Black & Black, Gus Carr Anderson, Pocatello, for appellant.
L. F. Racine, Jr., Callis Caldwell, Pocatello, for respondents.
Appellant brought this action to compel respondents' specific performance of a contract requiring execution by them of deeds to real property and delivery to an escrow holder, or in the alternative for damages. On respondents' motion, additional parties were brought in as cross-defendants. Respondents by answer denied the material allegations of the complaint, and by cross claim sought damages against appellant.
The trial court at the conclusion of trial entered its findings of fact and conclusions of law, followed by its judgment denying relief to appellant, quieting title in respondents to the land involved, and disallowing damages to respondents on their cross-complaint.
Appellant's assignments claim error committed by the trial court in finding for respondents, appellant contending that the evidence shows default on the part of respondents in performance of the contract, existing throughout the period of the contract, which made performance by appellant impossible, and in holding that respondents had fully performed under the contract. Such assignments require a review of the evidence.
The record shows that respondents as sellers agreed to sell and convey through an escrow arrangement, and appellant agreed to purchase certain real property situate in Bannock County, Idaho. The written contract evidencing the transaction is dated December 5, 1956; by its terms respondents agreed to sell, and appellant to buy, about eleven acres of undeveloped land for purposes of subdivision.
The contract provided that appellant should pay $22,000.00 principal for the property; $3,850 was required to be paid in cash, $3,750 in stock of appellant company, and the remainder in payments within three years from September 28, 1956; that appellant should plat the property and cause the streets to be roughed in; that upon completion of the subdivision and sale of lots therein, appellant should pay to respondents certain amounts from proceeds of sale, until the balance of purchase price was fully paid.
In regard to the manner of payment for the property, delivery of deeds to building lots, and an arrangement of escrow, the contract provided:
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'Both parties agree that within thirty days after the execution of this instrument the following papers shall be placed in escrow with the First Security Bank, (and it is hereby agreed that First Security Bank be empowered to and are authorized to act as escrow agents in this matter): An escrow contract; warranty deeds of the herein described property from the first parties to the second party; and Special Warranty Deeds of the same property from the Purchaser to the Vendors, together with a copy of this contract. * * *'
Pursuant to such provisions (but not within the required 30 days), appellant and respondents executed what purported to be an escrow agreement and placed it, along with deeds to certain of the lots, with Mr. Quinn, escrow officer of the bank named in the contract. That agreement directed the bank as escrow depository to deliver the deeds and documents to the grantee, Associated Developers Company, Inc., upon payment to the bank 'in accordance with the provisions of the real estate contract deposited herewith and described above,' which the parties had executed December 5, 1956, pertinent parts of which are hereinbefore quoted. The purported escrow agreement did not provide for payment of any escrow fees to the bank, nor did the parties attempt to correct the deficiencies in the purported escrow agreement.
In November, 1959, the purchase price not having been paid, respondents notified the bank of this default and requested return in 60 days of any papers the bank had in its possession relating to the transaction; the notice in effect terminated the contract should the entire purchase price not be paid in the 60-day period. The bank forwarded the notice to appellant with its written communication stating that the papers were never accepted by the bank although held in its file inasmuch 'as the escrow terms had not been complied with.' At the end of the 60-day period the bank returned to respondents all papers in its files relating to the transaction. Appellant thereupon brought the pending action.
The trial court, in finding for respondents, made certain findings:
'II
'* * * that Mr. Quinn, of the Escrow Department of said bank, took these papers and informed the parties of the costs of said escrow.
'III
'VI
'That the Plaintiff, Associated Developers Co., Inc., did not tender to the First Security Bank of Idaho, N. A., the escrow fees, and said escrow contract was never signed by said First Security Bank of Idaho, N. A., although all the papers deposited therein were held by the First Security Bank of Idaho, N. A., for the full time of the contract.
'IX
'That the Defendant did not breach the contract, did not prevent the Plaintiff from selling the lots and making payments as provided for in said contract, and did not seek to forfeit said contract, but at all times during the period of said contract, after the period of said contract, at the pre-trial conference, and at the trial of this action, the Defendants, Ray E. Infanger and Vera S. Infanger, were ready, willing, and able to perform anything required of them by said contract and during said periods offered specific performance, but specific performance was not tendered by the Plaintiff, Associated Developers Co., Inc., at any time.'
These findings are not entirely correct in that they differ from the evidence as to certain material facts. The evidence shows that Mr. Quinn did not inform the parties of the costs of the escrow; and while certain papers relative to the transaction were held by the bank they were held only on deposit and not in escrow; also, the parties did not arrive at any figure of escrow fees, nor agree with the bank as to the fees; also, the contract was not clear in its reference to an escrow, nor did the purported escrow agreement provide for the contract payments to be made to the bank other than by reference to the contract, nor provide payments of escrow fees, nor was it executed by the bank.
Mr. Quinn testified that the bank did not accept the escrow because, as he stated, the terms of the contract were not clear concerning the escrow. In the regard that no escrow arrangement with the bank was completed he further testified that the amount of initial escrow fee was neither agreed upon nor paid, nor did the purported escrow agreement...
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Ellis v. Butterfield, 12086
...v. Andrews, 94 Idaho 215, 485 P.2d 957 (1971); Dohrman v. Tomlinson, 88 Idaho 313, 399 P.2d 255 (1965); Associated Developers Co. v. Infanger, 85 Idaho 158, 376 P.2d 496 (1962); Huggins v. Green Top Dairy Farms, 75 Idaho 436, 273 P.2d 399 (1954); or because the vendor has effectively waived......
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