Calder v. Third Judicial Dist. Court In and For Salt Lake County

• Decision Date: 21 July 1954
• Docket Number: 8159,Nos. 8155,s. 8155
• Parties: d 309, 46 A.L.R.2d 887 . MERRILL, v. CALDER et al. Supreme Court of Utah
• Court: Utah Supreme Court

Page 168

273 P.2d 168

2 Utah 2d 309, 46 A.L.R.2d 887

CALDER et al. v. THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY et al.

MERRILL, v. CALDER et al.

Nos. 8155, 8159.

Supreme Court of Utah.

July 21, 1954.

Elias Hansen, Salt Lake City, George K. Fadel, Bountiful, for appellants.

Grant Macfarlane, Salt Lake City, for respondents. WADE, Justice.

These two cases were ordered consolidated by this Court upon stipulation of the parties because about the same issues are involved in both. One is an appeal and the other is a petition for a writ of mandamus.

Charles S. Merrill brought an action in Salt Lake County, Utah, seeking rescission on the ground of fraudulent misrepresentation made in that county of a contract to purchase from the Calders 200 acres of land situated in Davis County, Utah. A part of this land was definitely described but the larger portion was to be selected in one tract by the buyer within 60 days from a larger tract described in the contract and belonging to the sellers. The Calders filed a motion in this action for a change of venue to Davis County, where they resided and where the subject matter of the contract is situated, and where the obligations thereunder were to be performed. This motion was denied. The Calders then answered the complaint and filed counterclaims seeking specific performance of the contract or damages for its breach. They also filed a motion for an order requiring Merrill to make a selection of the property involved as provided in the contract, or in lieu thereof, if Merrill refused to do so, to appoint three referees to make the selection for him. This motion was not acted upon by the court, but a motion to dismiss the counterclaims on the grounds that they did not state facts sufficient to constitute a claim against Merrill was granted. The appeal and the petition for the writ of mandamus were brought by the Calders to determine whether the court erred in refusing to change the venue and in dismissing their counterclaims.

We shall first consider whether the court erred in dismissing the counterclaims. It is the contention of Merrill that because he failed to make the selection, the description of the greater portion of the property was so vague and uncertain as to render the contract unenforceable under the provisions of Section 25-5-3, U.C.A.1953, which is a part of the Statute of Frauds, which provides that a contract or a memorandum thereof for the sale of land is void unless it is in writing.

There is no question here but that the tract from which the selection was to be made by Merrill was sufficiently described in the contract. The question is whether under the statute of frauds the description is sufficient so that there is a valid contract which can be enforced either by specific performance or for damages for the breach thereof where the contract provides that one of the parties is to make the selection. On that question there are cases to be found going both ways. As stated in 49 Am.Jur., Sec. 350, pages 660-661:

'There is a definite conflict in the result of cases determining the sufficiency under the statute of frauds of a description in a land contract which gives one of the parties the right to select the particular tract to be conveyed, but the diversity in result appears to be due in part at least to the circumstance present in some cases but absent from others that the description located the property from which the tract to be conveyed was to be selected * * *. The weight of authority is to the effect that a selection in accordance with the terms of the agreement renders the contract absolute, especially where the selection was to be made out of lands located by the contract, since by thus resorting to matters referred to in the contract, the particular lands to be conveyed are definitely located.

'According to some authorities, the actual making of a selection under the agreement is not essential to satisfy the statute. The view is that the right to make the selection is sufficient to satisfy the statute, since it gives a means by which the particular property to be conveyed is to be definitely located. It is to be observed, however, that in some of the cases supporting this position the fact was that the selection was to be made from a larger tract described in the written agreement. Other authorities vigorously maintain the view that under a contract which not only does not attempt to describe the subject matter, but expressly provides that its identity shall be fixed by acts to be subsequently performed by one of the parties, no court prior to the performance of such act can say that any certain land is embraced in the writing or give validity to it as a contract for the sale of any land, either directly, by enforcing its specific performance, or indirectly, by awarding damages for its breach. Some authorities apparently maintain this view notwithstanding the contract calls for the selection to be made out of lands described in the contract. It has been held that where the purchaser agrees to make the selection, he is not thereby estopped to assert the invalidity of the contract for failure sufficiently to designate the land, since the undertaking of the purchaser is in effect no more than an oral contract on his part thereafter to enter into a binding contract of purchase which is to the same extent as a present contract of purchase within the operation of the statute. At least some of the authorities which take the position that a party who has agreed in writing to select lands cannot void the obligation to which he has thus committed himself, merely by refusing to act at all, concede that an oral selection is not enough to convert the contract into one for the conveyance of the specific tract selected.'

To the same effect see Annotations in 34 L.R.A.,N.S., pages 147 to 150.

It is Merrill's contention that by its holding in Reed v. Lowe, 8 Utah 39, 29 P. 740, this Court has aligned itself with those jurisdictions whose cases hold that a contract such as is involved in the instant case is unenforceable under the statute of frauds for uncertainty in the description. In that case the parties did not agree to have one of them make the selection; although the court states the selection was to be made 'at the option of the purchaser', the contract, which is set out in full in the opinion, does not contain any such provision. As stated in Scanlon v. Oliver, 42 Minn. 538, 44 N.W. 1031 on page 1032, in distinguishing cases where the contract gave one of the parties thereto a right of selection from the one it held unenforceable because it provided that the particular piece to be conveyed was to be mutually agreed upon between the parties:

'* * * Counsel contends that the writing is a complete contract, because it provides a mode by which the location and description of the land is to be definitely determined, but the trouble is that the mode provided is the future agreement of the parties. All the cases cited in support of this contention are like those of Burgon v. Cabanne [42 Minn. 267, 44 N.W. 118], and Brown v. Munger [42 Minn. 482, 44 N.W. 519], where the writings provided definite means by which the land was to be ascertained and known, without any further agreement of the parties, as where one party had the exclusive right of selection. But the agreement was completed and closed. * * *'

In the Reed v. Lowe case the mode to be used in definitely locating and describing the land was not provided for in the written agreement of the parties. In the instant case the contract specifically provides that Merrill was to select the land within a given time. As far as the contract was concerned, nothing more had to be agreed upon between the parties nor was it uncertain in that respect. As stated in Peckham v. Lane, 81 Kan. 489, 106 P. 464 on page 466, 25 L.R.A.,N.S., 967:

'* * * No reason is apparent why a person may not make a valid contract that he will sell to another one of several pieces of real estate of which he is the owner, to be selected by himself. When an agreement to that effect is written out and signed, it is a complete contract, all of the terms of which are expressed in writing. The owner agrees...