Croft v. Jensen (West, Interveners)

• Decision Date: 12 January 1935
• Docket Number: 4565
• Citation: Croft v. Jensen (West, Interveners), 40 P.2d 198, 86 Utah 13 (Utah 1935)
• Court: Utah Supreme Court
• Parties: CROFT v. JENSEN et al. (WEST et al., Interveners)

40 P.2d 198

86 Utah 13

CROFT v. JENSEN et al. (WEST et al., Interveners)

No. 4565

Supreme Court of Utah

January 12, 1935

Appeal from District Court, Third District, Salt Lake CountyEphraim Hanson, Judge.

Action by Mrs. Minnie Croft against A. M. Jensen and another wherein David W. West and another filed a complaint in intervention.From a judgment in favor of the interveners, defendants appeal.

REVERSED and REMANDED, with directions.

R. B Thurman, of Salt Lake City, for appellant.

Hurd &amp Hurd, of Salt Lake City, and M. B. Pope, of Provo, for respondent.

ELIAS HANSEN, Justice.STRAUP, C. J., FOLLAND, and MOFFAT, JJ., and R. I. McDONOUGH, District Judge, concur.EPHRAIM HANSON, J., being disqualified did not participate.

OPINION

ELIAS HANSEN, Justice.

Heretofore an opinion has been written in this cause and by a divided court the judgment appealed from affirmed.Thereafter a rehearing was granted, and the cause reargued.Plaintiff brought this action against the defendants, A. M. Jensen and I. G. Bench, for the cancellation of a contract for the sale of a parcel of land situated in Salt Lake City and county, Utah; for the restitution of the property covered by a contract of sale; and for damages for the wrongful detention thereof by the defendants.By the contract of sale sued upon, the plaintiff agreed to sell the property therein described to the defendantA. M. Jensen.The ground upon which plaintiff claimed the right to declare a forfeiture of the contract of sale was that defendants were in default in the payment of two installments of $ 50 each.To the complaint the defendants filed separate answers in which each denied the default.Defendant Bench further alleged in his answer that he is the assignee of the rights of defendant Jensen in and to the contract of sale; that prior to the bringing of this action he tendered to the plaintiff the full amount remaining unpaid on the contract, and that he tendered such amount into court for the use of the plaintiff.

After the issues were thus drawn and before trial the interveners, David W. West and May H. West, asked for and were granted leave to intervene in the cause.They filed a complaint in intervention in which two causes of action are alleged against the defendants, Jensen and Bench.It is alleged in the first cause of action that plaintiff has assigned to the interveners her cause of action and has conveyed to them by warranty deed the property covered by the contract of sale.The other allegations of interveners' first cause of action are substantially the same as are contained in plaintiff's complaint.It is, in substance, alleged in interveners' second cause of action that prior to the transaction complained of interveners were the owners of a parcel of land in Cache county, Utah; that they engaged the defendantA. M. Jensen as their agent to sell or trade such tract of land; that A. M. Jensen, while acting as their agent, fraudulently entered into a contract with the plaintiff for the purchase of the Salt Lake City property; that such fraud consisted of Jensen making the contract for his own use and benefit instead of for the use and benefit of the interveners; that the consideration paid on the purchase price of the Salt Lake City property was the Cache county property of the interveners; that Jensen had wrongfully gone into and retained possession of the Salt Lake City property of interveners to their damage in the sum of $ 500.Defendants filed separate answers.The answers to the first cause of action set out in the complaint in intervention are substantially the same as the answers to the complaint.As to the second cause of action, each of the defendants alleged that defendant purchased the Cache county property from the interveners for the sum of $ 1,500; that such sum was paid to interveners by giving them credit on a note which they owed to the wife of the defendant Jensen.Each of the defendants denied that any fraud was practiced upon interveners, and also denied that they were damaged.While there are other pleadings filed in the cause, such as demurrers, notices to strike, and replies, it was upon the issues raised by the complaint in intervention and the answer thereto that a trial was had to the court sitting without a jury.It will be observed that, upon the filing of the complaint in intervention, the interveners in effect became the plaintiffs in the cause.The findings of fact, conclusions of law, and judgment made in the cause are in favor of the interveners and against the defendants.By the judgment the interveners are awarded the Salt Lake City property and are given a money judgment against the defendants for the sum of $ 260 and costs.Defendants appeal.Their assignment of errors is directed primarily against the sufficiency of the evidence to support the findings and judgment.It thus becomes necessary to review the evidence.

The following facts are established by the undisputed evidence: On March 14, 1925, the plaintiff, Minnie Croft, and the defendantA. M. Jensen entered into a written contract whereby plaintiff agreed to sell, and Jensen agreed to buy, a house and lot located at 1436 Lincoln street, Salt Lake City, Utah.The agreed price was $ 6,500.At the time the contract of sale and purchase was entered into, the sum of $ 4,200 was paid to plaintiff.Jensen paid $ 200 by check.Intervener West conveyed to plaintiff a parcel of land upon which was a building used for conducting a motion picture theater, together with the equipment therein, for the agreed price of $ 4,000.The land so conveyed to plaintiff is located in Lewiston, Cache county, Utah.By the terms of the deed of conveyance plaintiff assumed and agreed to pay a mortgage in the sum of $ 650 on the Lewiston property.The contract between plaintiff and Jensen for the sale and purchase of the Lincoln street property contains the following provisions:

"Said buyer hereby agrees to pay for said described premises the sum of Sixty-five Hundred and No/100 dollars, payable at 306 East 5th South in Salt Lake City, Utah, strictly within the following times, to wit: Forty-Two-Hundred dollars cash, the receipt of which is hereby acknowledged.And fifty-dollars or more on or before the 12th day of April, 1925, fifty-dollars or more on or before the 12th day of May, and fifty-dollars or more on or before the 12th day of each and every month until the total sum of forty-five hundred dollars shall have been paid; Said monthly payments to be applied first to the payment of interest and second to the reduction of the principal.Interest shall be charged on all unpaid portions of the purchase price at the rate of Eight per cent per annum, payable monthly.

"It is understood and agreed that if the seller accepts payments from the buyer on this contract other than according to the terms herein mentioned, then by so doing, it will in no way alter the terms of the contract as to forfeiture hereinafter mentioned.

"The seller is hereby given the option to execute and maintain a loan secured by mortgage upon said property of not to exceed $ 2000.00, bearing interest at the rate of not to exceed 7 per cent.When the principal has been reduced to the amount of the loan and mortgage, the seller agrees to convey and the buyer agrees to accept title to the above described property subject to said loan and mortgage.

"The buyer agrees upon written request from the seller to make application to a reliable Building and Loan Society for a loan of such amount that can be procured under the regulations of the said society; and hereby agrees to apply any amount so received on the purchase price herein and that he will execute the papers required and pay the expenses necessary to obtain the said loan.

"In the event the buyer shall default in the payment of any special or general taxes, assessments or insurance premiums as hereinbefore provided for, and in the event the seller shall, as he may at his option, pay said taxes assessments, or insurance premiums, or either of them, then the buyer agrees to repay the seller upon demand all such sums so advanced and paid by him together with interest thereon from date of payment of the said sums at the rate of one per cent per month until paid and same shall be secured by this contract.

"In the event of a failure to comply with the terms hereof by the buyer or upon failure to make any payment when the same shall become due, or within Thirty days thereafter, the seller shall be released from all obligations in law and equity to convey said property, and the said buyer shall forfeit as liquidated damages all payments which have been made theretofore on this contract, and the buyer agrees that the seller may at his option re-enter and take possession of said premises without legal process as in its first and former estate, together with all improvements and additions made by the buyer thereon, and the said additions and improvements shall remain with the land and become the property of the seller, the buyer becoming at once a tenant at will of the seller.It is agreed that time is of the essence of this agreement.

"When the entire purchase price has been paid and all terms and conditions have been complied with, seller agrees to convey said premises to buyer by a Warranty Deed, free of encumbrances except as above mentioned and except as may be caused by or through the buyer and to deliver abstract of title to date."

At the time the contract between plaintiff and Jensen was entered into there was a mortgage in the sum of $ 2,000 on the Lincoln street property.That mortgage had not been paid at the time of the trial of this action.Defendant Jensen and his family took possession of the Lincoln street property on or about May 1, 1925.They...