Christy v. Guild

• Decision Date: 22 January 1942
• Docket Number: 6320
• Citation: Christy v. Guild, 101 Utah 313, 121 P.2d 401 (Utah 1942)
• Court: Utah Supreme Court
• Parties: CHRISTY et ux. v. GUILD et ux

121 P.2d 401

101 Utah 313

CHRISTY et ux. v. GUILD et ux

No. 6320

Supreme Court of Utah

January 22, 1942

Appeal from District Court, Third District, Salt Lake County; Oscar W. McConkie, Judge.

Unlawful detainer action by John Christy and Kathryn E. Christy husband and wife, against Edward L. Guild and Mabel C. Guild husband and wife, for restitution of certain realty in the possession of defendants under a contract of sale and for treble damages for the unlawful detention of the realty.From a judgment in favor of plaintiffs, entered upon a directed verdict, defendants appeal.

Judgment affirmed.

J. D Skeen and E. J. Skeen, both of Salt Lake City, for appellants.

H. L. Mulliner and H. G. Metos, both of Salt Lake City, for respondents.

McDONOUGH Justice.WOLFE, LARSON, and PRATT, JJ., MOFFAT, Chief Justice, concurring.

OPINION

McDONOUGH, Justice.

This is an unlawful detainer action, originally commenced in the City Court of Salt Lake City, for the restitution of certain premises in the possession of Edward L. Guild and Mabel C. Guild, his wife, under a contract of sale, from John Christy and Kathryn E. Christy, his wife.Under the contract, entered into in 1935, the Guilds were to pay $ 3,200 for the property in monthly installments of $ 30, including both principal and interest.They further agreed to make certain improvements on the front and rear of the house located on the property and to pay all taxes and assessments and keep the property insured against fire.

On April 30, 1940, respondents served appellants with notice that in accordance with the terms thereof, the contract would be terminated for failure (1) to make monthly installments totalling $ 130, (2) to make the improvements provided for, and (3) to pay the taxes and insurance in the amount of $ 297.20, unless said payments, with interest, and said improvements were made before May 12, 1940.The notice concluded:

"Unless you [comply by May 12] you shall, in accordance with with the provisions of said contract, and by the election of said Sellers, forfeit as liquidated damages all payments heretofore made by you on said contract and will become a tenant at will of the said John Christy and Kathryn E. Christy of the real property."

Nothing was done to comply with the conditions of the notice; and on the 15th of May, 1940, a notice to quit was served on appellants.

Upon failure of the Guilds to vacate, this action was commenced.The complaint, in addition to setting out the above facts, further alleged:

"That the plaintiffs are entitled to the immediate possession of said premises.That the defendants have failed, refused and neglected to surrender said premises and still continue in possession thereof and still refuse to surrender the same to the plaintiffs.That the monthly value of the rents and profits of said premises is the reasonable sum of $ 75.00."

Then followed a prayer for restitution of the premises and for treble damages for the unlawful detention.

Appellants answered, admitting the allegations of the complaint as to the existence and terms of the contract of sale.As to the asserted defaults in the performance of the contract, however, it was alleged (1) that the provisions with respect to improvements were waived; (2) that a note had been given for the payment of taxes and insurance upon which note payments had been made; and (3) that payments on the contract had been made to and including March 31, 1940, and that

"before the institution of this suit they[defendants] tendered to the said plaintiffs the total amount due upon said contract, exclusive of the said note, to wit: the sum of $ 130."

The answer further set out that appellants had made improvements on said property of the approximate cost and value of $ 2,000; that they had made 49 payments upon the contract of sale from March 16, 1935, to March 31, 1940, "in various amounts aggregating a total of $ 1,647.67."The other allegations of the complaint were denied, except defendants admitted

"that they refused to surrender the premises to the plaintiffs and allege that they have a legal right to retain possession of the same."

The case was first tried in the city court and then appealed to the district court, where it was tried before a jury.At the conclusion of the evidence the court, on motion, directed a verdict for respondents, granting restitution of the premises and assessing damages in the sum of $ 137.50. which sum, in accordance with the prayer of the complaint, was trebled.

This appeal presents two problems for our consideration: (1) Whether in view of the evidence the issues as to the alleged defaults of appellants should have been submitted to the jury; and (2) whether at all events the trial court should have considered the "equities" between the parties and adjudged that appellants were entitled to some reimbursement for the improvements made and for the large amount paid on the contract (approximately one-third of the principal sum, plus interest).

We conclude, from a review of the record, that the lower court did not err in refusing to submit to the jury the question of whether there had been a default in the performance of the terms of the contract.As to the delinquency in making payments on the contract amounting to $ 130, it has never been urged that such default did not exist.Nor was any attempt made to make up such delinquency until after the notice to vacate had been served on appellants subsequent to the termination of the contract by respondents.It is argued, however, that there had been a waiver of the term of the contract as to time being of the essence thereof and that reasonable notice was not given of respondent's intention to enforce the contract in this respect for failure to make the payments as stipulated.Payments were not made strictly in accordance with the terms of the contract from the very beginning.But commencing with January, 1940, the appellants were given notice of intention to enforce the forfeiture provisions of the contract if payments were not made in time, and appellants promised to make the required payments.Notwithstanding, on April 30, 1940, appellants were in arrears on monthly installments for part of December, 1939, and for all of January, February, March, and April, 1940.Appellants point to the fact that a payment was made on the contract on March 31, 1940, as an indication of waiver of defaults in making the monthly installments.This payment, applied on past due installments, brought the payments up to and including part of December, 1939.

We are of the opinion that under the state of facts here presented, the acceptance of the payment of March 31, 1940, on past due installments did not for several reasons result in a waiver.In the first place the contract of the parties specifically provided that the acceptance by the vendors from the vendees of payments thereunder other than according to the terms of the contract would in no way alter the terms thereof as to forfeiture.Discussing a similar provision in a contract for the sale of realty the California District Court of Appeals in Brown v. Chowchilla Land Co., 59 Cal.App. 164, 210 P. 424, 427, hearing denied bySupreme Court, stated:

"If the parties had expressly provided that the acceptance by the vendor of payments after they were due should not be deemed a waiver of the provision that time is of the essence of the contract and should not be considered a relinquishment of the vendor's right to claim a forfeiture for any subsequent default on the part of the vendee, then it would not be illegal or inequitable for the vendor to insist upon forfeiture for any such subsequent default.The requirement of notice after the receipt of overdue payments without objection is based upon the equitable consideration that by his conduct the vendor has led the vendee into the belief that the former will continue to waive the strict performance of the contract.The principle of equitable estoppel is involved.But the reason for the rule does not exist where the parties have expressly agreed that such waiver shall not affect any subsequent breach or relinquish the right of the vendor to insist thereafter upon a strict observance of the terms of the contract.We think the parties could not have more effectually provided that a waiver of a breach of the contract should not be held to have occurred by reason of the forbearance of the vendor to take advantage of any prior default.

"The parties could not fail to understand from the particular covenant in question that the acceptance of any overdue payment or payments was to be regarded as an indulgence to the vendee, but as to the future the whole contract remained in full force and effect and rendered the vendee subject to the penalty of forfeiture for any default thereafter.We may repeat that the right to declare a forfeiture for the failure to pay on time is one of the covenants of the contract and hence it is a part of the agreement which the parties have in effect declared shall not be deemed waived or affected by any previous default.The case therefore stands as...