Cooley v. Call
| Decision Date | 29 December 1922 |
| Docket Number | 3863 |
| Citation | 61 Utah 203,211 P. 977 |
| Court | Utah Supreme Court |
| Parties | COOLEY et al. v. CALL et al |
Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.
Action by Arthur D. Cooley and another against W. Vosco Call and another. Judgment for defendants, and plaintiffs appeal.
AFFIRMED.
Le Roy B. Young, of Brigham City, for appellants.
Richards & Mitchell, of Salt Lake City, and B. C. Call, of Brigham City, for respondents.
On November 25, 1919, plaintiffs and defendants entered into a written contract whereby plaintiffs agreed to sell and defendants agreed to purchase certain real estate situated in Box Elder county, Utah. The purchase price of the property was $ 8,450, payable as follows: $ 1,850 upon execution of the contract; $ 1,000 December 1, 1920; $ 1,000 December 1, 1921; and in addition thereto defendants assumed payment of a portion of two mortgages on that and other property aggregating $ 4,600, and, agreed to pay all taxes thereafter levied upon the premises.
In pursuance of said contract defendants made the initial payment of $ 1,850 and entered into possession of the property. They paid the taxes levied on the property, except for the year 1921, and interest on $ 3,000 (being their portion of one of the mortgages) except the sum of $ 90 due July 1, 1921. Defendants defaulted as to the remainder of the principal, interest, and taxes, and on January 11, 1922, plaintiffs commenced this action to enforce a specific performance of the contract, demanding judgment for $ 2,577. 43 with interest thereon, together with a vendor's lien on the property and foreclosure thereof in the manner provided by law.
The contract sought to be enforced is stated at length in the complaint. It is expressly stated that time is of the essence of the contract, and among other provisions it contains the following stipulation:
The defendants, answering, admit the contract and their failure to perform as alleged in the complaint. They allege certain defenses not necessary to mention in view of the findings made by the court. They plead and specially rely on the stipulation of the contract hereinbefore quoted and allege that plaintiffs are thereby estopped from prosecuting an action for specific performance of the contract. Finally, defendants by reason of certain alleged wrongs and defaults on the part of the plaintiffs, interpose a counterclaim against the plaintiffs for the sum of $ 1,850 advanced upon the execution of the contract, together with interest and costs. Defendants pray judgment for said amount and for a lien upon the property to secure payment of any amount found due to defendants.
The trial court found that neither party was in possession of the property when the action was commenced; that all of the allegations of defendants' answer and counterclaim are untrue, except as to the special provision of the contract hereinbefore quoted. As to that the court found it to be true, and as conclusions of law found that because of said provision of the contract plaintiff had no election of remedies, and could not maintain an action for the balance of the purchase price. The court further found as conclusion of law that the $ 1,850 paid by defendants was forfeited to plaintiffs as stipulated damages, and that defendants had no right to recover the same or any part thereof, that neither party had a cause of action against the other, and that defendants were entitled to their costs.
The appeal is on the judgment roll alone. From the foregoing statement of the case it appears that the only question to be determined is: Had the plaintiff a right of action for specific performance of the contract in view of the provision terminating the contract and forfeiting previous payments as stipulated damages in case of defendants' default? Appellants contend that such provision was inserted for the sole benefit of the vendors, and that they had a right to elect whether they would declare a forfeiture or sue for the purchase price. Appellants also contend that by remaining in possession of the premises and accepting rents and profits therefrom respondents waived whatever benefits they might have claimed under the provisions of the contract upon which they rely, and also waived such benefits by filing a counterclaim and asking for affirmative relief.
As to the defense of waiver there is but little discussion by appellant, and no authorities whatever are cited. Waiver was not pleaded, nor was there any finding thereon by the court. Besides this, we fail to see any merit in the contention, inasmuch as there is nothing in the contract from which it can be inferred that respondents might lose any rights thereunder by reason of the acts relied on as constituting a waiver.
With the question of waiver eliminated, the only question remaining is: Did appellants have the right to elect what remedy they would pursue or was the remedy fixed by the terms of the contract which plaintiff is seeking to enforce? We assume it will not be contended that parties entering into a contract are without power to fix the measure of damages for a breach thereof. In Rose v. Garn, 56 Utah 533, at page 537, 191 P. 645, 646, the court says:
"No court has ever held that the parties may not agree between themselves as to the measure of damages that shall be sustained upon the breaching of a contract by either party."
Our attention is called to the following statement of the doctrine in Pomeroy's Eq. Jur. vol. 1, § 447:
"Where, however, the parties to an agreement have added a provision for the payment in case of a breach of a certain sum which is truly liquidated damages, and not a penalty--in other words, where the contract stipulates for one of two things in the alternative, the doing of certain acts or the payment of a certain amount of money in lieu thereof--equity will not interfere to decree a specific performance of the first alternative, but will leave the injured party to his remedy at law."
See, also, Johnson v. Geddes et al., 49 Utah, at page 145, 161 P. 910.
This rule is elementary. It only remains to determine whether or not the parties to the instant contract fixed the measure of damages in case of a breach on the part of the purchaser, and, if so, whether or not the measure of damages so fixed and determined is exclusive of any other remedy.
In support of their contention that the provision of the contract in question was made for the sole benefit of the vendors, and that the vendors could elect their remedy, appellants rely on Wilcoxson v. Stitt, 65 Cal. 596, 4 P. 629, 52 Am. Rep. 310; 39 Cyc. pp. 1904, 1923; Rose v. Garn, 56 Utah 533, 191 P. 645; Harsh v. Neil, 52 Utah 533, 175 P. 606; Dopp v. Richards, 43 Utah 332, 135 P. 98; and Tremonton Inv. Co. v. Horne, 59 Utah 156, 202 P. 547.
Appellants appear to place special reliance on the doctrine enunciated in Wilcoxson v. Stitt, supra, and insist that the provision of the contract in the Wilcoxson Case is identical with the provision of the contract in question here, except as to the concluding sentence, declaring the second parties to be tenants at will.
If the provision of the contract in the case at bar were substantially similar to the forfeiture provision in the Wilcoxson Case, as contended by appellants, there would be much more force in their contention. This court has not had occasion in any former case to determine the exact question presented on this appeal, and our respect for the decisions of the California court is such that we would hesitate long before reaching a conclusion diametrically opposed to a decision of that court, but we cannot agree with appellants' contention that the provisions of the two contracts are substantially similar. In the California case the action was to recover the balance of the purchase price for a tract of land. The defendant had paid one-half the price on the execution of the contract. The contract contained the following stipulation:
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