Baugh v. Darley

• Decision Date: 08 September 1947
• Docket Number: 7014
• Citation: 112 Utah 1,184 P.2d 335
• Court: Utah Supreme Court
• Parties: BAUGH v. DARLEY

184 P.2d 335

112 Utah 1

BAUGH v. DARLEY

No. 7014

Supreme Court of Utah

September 8, 1947

Appeal From District Court, First District, Cache County; M M Morrison, Judge

Action by Wilford F. Baugh against Raymond B. Darley to recover amount of down payment on purchase price of realty which had been owned by defendant, and for damages for breach of oral contract by defendant to sell realty to plaintiff. From an adverse judgment of the city court of Logan, the plaintiff appealed to the district court. From a judgment of the district court for the plaintiff, the defendant appeals.

Judgment reversed.

L. E Nelson, of Logan, for appellant.

Preston & Harris, of Logan, for respondent.

McDONOUGH C. J., and PRATT and LATIMER, JJ., concur.

OPINION

WOLFE, Justice.

Appeal from a judgment of the first district court for plaintiff for $ 480 with interest and costs.

Plaintiff commenced this action in the city court of Logan, alleging in his amended complaint that he was an expert real estate salesman and well acquainted with the real estate market and real estate values in and around Wellsville, Utah; that the defendant was the owner of certain described land; that the defendant entered into an oral agreement with plaintiff whereby defendant agreed to sell to plaintiff the above mentioned land for $ 95 per acre (total of $ 3,562.50) payable $ 500 cash, and balance upon delivery of the deed and abstract of title, and that defendant agreed to have the deed and abstract ready within a few days; that thereupon plaintiff executed and delivered to defendant a check as follows:

'Logan Utah, April 21, 1945, No. ___

'Logan Branch

'First Security Bank of Utah 97-21

12

'National Association pay to the order of Raymond B. Darley $ 500.00 Five Hundred and no/100 Dollars

'37 1/2 Acres

'Payable $ 95.00 Dollars per Acre

'W. Baugh

'Rent 13 Per Acre';

that defendant accepted the check as down payment of the purchase price; that defendant endorsed and cashed the check; that plaintiff thereafter entered into a contract to sell the same land to one Perkins at a profit of $ 525; that when defendant learned of this he refused to sell the property to plaintiff, but instead sold it to Perkins for the amount Perkins had agreed to pay plaintiff, and that plaintiff thereby unjustly enriched himself in the sum of $ 525 plus the down payment of $ 500; that plaintiff had refused to pay the same, or any part thereof, except $ 500 paid after commencement of suit without prejudice to the right of either party.

A second count alleged substantially the same facts, but was based on a theory of breach of contract.

Defendant's general demurrer to the complaint having been sustained, and plaintiff having failed to amend his complaint within the time allowed by the court to do so, a judgment of dismissal was entered. Plaintiff appealed to the district court.

The district judge overruled the defendant's amended demurrer, and the case was tried on the merits without a jury, resulting in judgment for the plaintiff in the sum of $ 480 with interest and costs.

Defendant has assigned numerous errors most of which go the sufficiency of plaintiff's pleading and proof to make out a cause of action.

In paragraph 4 of the complaint, plaintiff alleges that defendant orally agreed to sell him certain land. Sec. 33-5-3, U.C.A.1943, provides:

"Every contract for the leasing for a longer period than one year, or for the sale, of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, is in writing subscribed by the party by whom the lease or sale is to be made, or by his lawful agent thereunto authorized in writing."

Plaintiff relies on the doctrine of part performance to take the contract out of the statute of frauds. He urges that his efforts to re-sell the property and his contract to sell the property to Perkins, together with his down payment of $ 500 to defendant, amounted to a sufficient part performance to take the contract out of the statute of frauds. In 2 Williston on Contracts, Sec. 494, page 1430, it is said:

"From an early day courts of equity have excepted from the operation of the Statute of Frauds contracts for the sale of land where there has been part performance, so called, of the contract.'" (Italics added)

The basis of the doctrine originally was that equity would not permit the statute to be used as an instrument for the perpetration of a fraud. The doctrine is now firmly established in the rules of equity jurisprudence of both England and most of our states. It is almost equally well established that the doctrine is purely equitable in nature, and has no place in an action at law. The doctrine is not available to a plaintiff who brings an action at law for money damages on an oral agreement to purchase land. See 1 Pomeroy's Equity Jurisprudence, Sec. 103; 2 Williston op. cit. Sec. 494, p. 1440. The cases holding to this rule are collected and discussed in an Annotation in 59 A.L.R. 1305.

Since the second count of the complaint is based on a breach of the oral agreement to sell the land, and is an action at law for money damages, the doctrine of part performance is not available to plaintiff, and it is unnecessary for us to consider whether or not the acts alleged by plaintiff as part performance would be sufficient to take the contract out of the statute in an equity suit for specific performance. It is clear that the second count of the complaint did not state a cause of action.

We turn now to the question of whether or not the first count states a cause of action in unjust enrichment. It raises a question not heretofore determined by this court. The plaintiff is, in effect, seeking recovery for the value of services in procuring a purchaser for land, where such services were rendered by the plaintiff in reliance upon an oral agreement to purchase the land from the defendant, and where such performance was made for the plaintiff's own advantage.

Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 923, 927; Federal Corporation v. Radtke, 229 Wis. 231, 281 N.W. 921, 923; Richland County Bank v. Joint School District No. 2 of Boaz, 213 Wis. 178, 250 N.W. 407. The benefit may be an interest in money, land, chattels, or choses in action; beneficial services conferred; satisfaction of a debt or duty owed by him; or anything which adds to his security or advantage. American Law Institute Restatement of Restitution, Sec. 1, comment b.

We must now determine whether or not the plaintiff has conferred a benefit upon the defendant. The down payment of $ 500 has been returned to the plaintiff so we have no question as to that. The plaintiff made no improvements upon the land, so there is no enrichment in that respect. But, plaintiff contends that the efforts expended by him in procuring a purchaser for the land were beneficial services, by which the defendant has become unjustly enriched.

The mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor. Restatement of Restitution, Sec. 1, comment c. Services officiously or gratuitously furnished are not recoverable. Restatement of Restitution, Sec. 2. Nor are services performed by the plaintiff for his own advantage, and from which the defendant benefits incidentally, recoverable. See Restatement of Restitution, Sec. 40, comment c; and Sec. 41(a)(i).

When a contract for personal services is not enforceable or is void under the statute of frauds because not performable within a year, the courts will generally permit the plaintiff to recover the reasonable value of services rendered by him, in pursuance of the oral agreement.

Services performed by the plaintiff outside the terms of the agreement would, of course, ordinarily be voluntary and, therefore, such services could not in any case be recoverable regardless of the statute of frauds. However, one might perform work or services intended for his own benefit, or for the benefit of another, in reliance upon as distinguished from in pursuance of an unenforceable agreement. Generally, unless such services enhance or benefit the property of the defendant or otherwise confer on him a direct benefit, they do not form the basis for a contract imposed by law because there is no 'unjust enrichment' as that term is used in law. Where such services operate to confer a direct benefit upon the defendant, they may be recoverable.

It could not be seriously contended that plaintiff's efforts to re-sell the land were called for in his oral agreement with the defendant. They were in fact, not services performed for another. They were services performed for himself. All that he was required to do under that agreement was to pay for the land. Therefore, he is not entitled to recover in unjust enrichment unless his services have conferred a benefit upon the plaintiff as the term "benefit" is herein used.

The most that can be contended for plaintiff's efforts is that they made known to a willing purchaser the fact that the defendant's land was available for purchase at a certain price. This benefit, if such it was, was at best only a mere incident to the plaintiff's efforts to enrich himself. It did not increase the intrinsic value of the land. It did not give the defendant any legal rights which he did not previously have. It did not increase his estate, nor give him a position of greater security. It did not remove any legal liability.

If the defendant, instead of selling the land to Perkins, had retained title in himself, there could be no claim whatsoever that he derived any benefit from the...