Call v. Timber Lakes Corp., 14839
| Decision Date | 29 July 1977 |
| Docket Number | No. 14839,14839 |
| Citation | 567 P.2d 1108 |
| Parties | Robert E. CALL, Everett H. Call and Ann D. Call, Plaintiffs and Respondents, v. TIMBER LAKES CORPORATION, Defendant and Appellant. |
| Court | Utah Supreme Court |
John S. Adams of Adams, Kasting & Anderson, Salt Lake City, for defendant-appellant.
Russell C. Harris, Salt Lake City, for plaintiffs-respondents.
This is a suit for declaratory judgment to determine the validity of a written contract, for the sale of real property, dated November 6, 1971. The respondents, hereafter referred to as "Calls," were the purchasers and the appellant was the seller. The trial court held the contract to be valid and in full force and effect. This appeal is from that ruling.
The contract provided for a down payment of $1,000 and the balance to be paid at the rate of $155.89 per month. The Calls made numerous late payments and missed several but were permitted to make up the missed payments.
On or about December 12, 1974, Timber Lakes notified Calls in writing that they were in arrears in their payments in the amount of $1,558.90 and unless the same was paid by December 22, 1974, the contract would be terminated. The contract provided as follows:
Time is of the essence of this contract, and should the BUYER fail or make default in any of the payments to be made hereunder, or fail to comply with each and all of the covenants, conditions and restrictions herein described, then, at the option of the Seller, the whole sum of the purchase price of said lots and all interest thereon remaining unpaid shall immediately become due and payable to the Seller, or the SELLER may, at its option, terminate all of the rights and privileges of the BUYER hereunder, and all monies therefor paid shall be retained by the SELLER and no part of such money shall be repaid to the BUYER. (Emphasis added.)
The evidence is in dispute regarding the efforts made to make the payments as demanded; but the court could find from the testimony given: (1) that the Calls contacted Timber Lakes and were informed that if they brought the delinquent interest up-to-date, amounting to over $600, by January 3, 1975, the contract would not be forfeited; (2) Calls took the check made out for the delinquent interest to appellant's office, but instead of tendering it, they offered a check for the entire amount of the arrearage demanded in the notice, to wit: $1,558.90; (3) that the check was refused and demand made for payment of the contract in full in the amount of some $7,400 plus $1,800 for a water hookup; (4) that there was no agreement to have a water hookup included in the contract.
In its brief, Timber Lakes admits that in addition to the down payment, the Calls also made monthly...
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