Cummings v. Nielson

• Decision Date: 04 December 1912
• Docket Number: 2393
• Citation: 42 Utah 157,129 P. 619
• Court: Utah Supreme Court
• Parties: CUMMINGS et ux. v. NIELSON et al

129 P. 619

42 Utah 157

CUMMINGS et ux. v. NIELSON et al

No. 2393

Supreme Court of Utah

December 4, 1912

On Application for Rehearing January 29, 1913.

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Horace M. Cummings and wife against Christion Nielson and others.

Judgment for defendants. Plaintiffs appeal.

REVERSED AND REMANDED WITH DIRECTIONS TO GRANT NEW TRIAL.

Moyle &amp Van Cott for appellants.

APPALLANTS' POINTS.

It has been held repeatedly by this court that in a motion for a nonsuit, the moving party must, in his motion specify particularly the points relied on for such nonsuit, and thereby call the attention of the court and the opposite party to the points of his objection. (White v. Rio Grande W. R. Co., 22 Utah 138, 61 P. 568; Smalley v Rio Grande W. R. Co., 34 Utah 423, 98 P. 311.) The language of a contract must be given its usual and ordinary meaning unless clearly employed in a technical sense. (Daily v. Old, 35 Utah 74.) The court in construing a contract will enlarge or restrict the words or clauses which, being construed literally, would defeat the intention of the parties. (Daily v. Old, supra.) And the courts are justified in adopting the interpretation which the parties themselves by their acts, have placed upon their contract. (Snyder v. Fidelity Sav. Assn., 23 Utah 291.) Where there is an ambiguity in a contract, the practical construction given it by the parties before the controversy arose should be adopted by the court. (Woodward v. Edmunds, 20 Utah 118; Roberts v. Tuttle, 36 Utah 614; Tilton v. Sterling Coal & Coke Company, 28 Utah 173.)

It is evident that the signing of the agreement by the appellants constituted an acceptance of its terms in the most emphatic way possible. The plaintiffs in their complaint offered to pay into court the sum of $ 3000, the price paid or partly paid to Neilsons under the alleged purchase made by Stillman, and such an offer of payment is sufficient under the authorities. (Irvine v. Gregory, 13 Gray [Mass.], 215; Freeson, et al. v. Bissell, 63 N.Y. 168-170; Park v. Johnson, 4 Allen [Mass.] 259.)

Geo. B. Hancock and Jas. Ingebretsen for respondents.

RESPONDENTS' POINTS.

The offer is uncertain as to description of property, as to price and as to the time within which it may be accepted, and as to all other terms and elements. The authorities appear to be agreed that a contract must be certain as to all of the above mentioned elements before it can be specifically enforced. (Waterman Spec. Performance, Sec. 146; 36 Cyc. 588-595; 11 Ency. S.Ct. Dec. 17; Grizzle v. Gaddis, 75 Ga. 350; Whitehill v. Lowe, 10 Utah 419; Schwanebeck v. Smith, 24 L. R. A. 168; Berry v. Woodburn, 40 P. 802; Lawley v. Wade, 118 P. 484; Edwards v. Rives, 35 Fla. 89; Fogg v. Price, 145 Mass. 513.)

It may not be absolutely necessary to exercise the option and tender the money before bringing suit, and it may be that a party can exercise the option and tender the purchase money for the first time in a complaint for specific performance, but we contend that regardless of the time or place when and where the option is exercised, the election so to do must be unconditional, and must be accompanied by an unconditional tender of the purchase price. In this case as will be manifest from reading the complaint, there is no unconditional acceptance and no unconditional tender. (11 Ency. S.Ct. Dec. pages 20-23; Kelsey v. Crowther, 162 U.S. 404; Litz v. Goosling, 21 L. R. A. 127.) Furthermore this alleged option even when exercised could not result in a mutual contract. (Stanton v. Singleton, 126 Cal. 657; Cooper v. Pena, 21 Cal. 404; Norris v. Fox, 45 F. 406; Marble v. Ripley, 10 Wall. 340; Ducie v. Ford, 8 Mont. 233; Balloe v. March, 133 Pa. St. 64.)

FRICK, C. J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, C. J.

Appellants brought this action for specific performance of the agreement hereinafter set forth. After hearing appellants' evidence, the district court, upon motion of all the respondents, granted a nonsuit and entered judgment dismissing the action, from which this appeal is prosecuted.

The pleadings are very voluminous; but, in view of the course of the proceedings and the result reached in the district court, we do not deem it necessary to set them forth. Nor is it deemed necessary to refer at length to the evidence adduced at the trial. We shall, however, refer to such parts of the pleadings and evidence, in the course of the opinion, as we may deem necessary to afford a full understanding of the points decided. The material parts of the agreement declared on are as follows:

"Salt Lake City, Utah, October 5, 1907. This agreement, made and entered into between Horace H. Cummings and Barbara M. Cummings, his wife, first part, and Christian Nielson and Sarah E. Nielson, his wife, second part, all of Salt Lake City, Salt Lake County, Utah, witnesseth: That the said second party hereby sells and conveys to the first party all their right, title and interest in the Cummings-Nielson Co. represented by fourteen shares of the capital stock (one share of their original investment having been sold to James Nielson) and also to give an option on all their or either of their interest in the estate of Julian Moses, deceased, or refusal to purchase the same at a price as low as any other bona fide offer for it or any portion of it, for the sum of five hundred eighty ($ 580) cash, the receipt of which is hereby acknowledged, and four hundred thirty ($ 430) within six months from date hereof. The said second party shall also see that the ten shares of stock which is now held as security of certain payments to be made to Ruth Moses shall be liberated before the said second payment is made. In consideration of the transfer of stock and the fulfilling of the aforesaid covenants and conditions, the first party agrees to make the payments as aforesaid." (Italics ours.)

The agreement was signed by all the parties named therein. It was either admitted by respondents, or proved by appellants at the hearing, that the appellant B. M. Cummings and the respondent Sarah E. Nielson and one Esther B. Swain are sisters and children of the Julian Moses, deceased, named in the agreement aforesaid, and were the sole heirs of his estate, subject, however, to a life estate of one Ruth Ridge Moses, who was the surviving widow of said Julian Moses, deceased, and the mother of said three sisters; that the appellant Horace H. Cummings is the husband of the appellant B. M. Cummings, and the respondent Christian Nielson is the husband of the respondent Sarah E. Nielson; that on the 11th day of July, 1908, the respondents Christian and Sarah E. Nielson sold their interest in the estate of said Julian Moses, deceased, to Forest N. Stillman, and the other respondent was made a party merely as the wife of said Forest N. Stillman; that the Nielsons sold their said interest and conveyed the same by proper deed of conveyance to said Forest N. Stillman for the sum of $ 3,000; that said sale was made without the knowledge or consent of appellants, and that said Stillman purchased with full knowledge of the agreement aforesaid and of appellants' rights; that appellants always were ready, willing, and able to pay, and, according to their testimony, are "now (at the time of trial) able, ready, and willing to pay into this court (district court), or to such person as this court may adjudge, the sum of $ 3,000, or any larger sum that any other bona fide purchaser would have paid for this property at the time of the sale to Mr. Stillman on July 11, 1908." The property mentioned in the agreement as the estate of Julian Moses, deceased, was fully identified in the pleadings and by the evidence at the trial.

It was also shown, through correspondence and conversations had between the parties to the contract, after the sale of the interest aforesaid, that all the parties to the agreement fully understood its meaning and general purport, and that the transaction between the Nielsons and Stillman was entered into, not because of the grounds now urged as hereinafter stated, but because the Nielsons insisted that the appellants did not want the property, or had waived their right to the same, or for some similar reason. When appellants had made proof of such matters as were denied and not admitted in the answers, all of the respondents made a motion for a nonsuit upon the following grounds:

"(1) That the offer or option, as contained in Exhibit A introduced herein as the basis for this action, is unfair, unreasonable, and unconscionable. (2) That the same is uncertain as to description of property, as to price and as to the time within which it may be accepted, and as to all other matters and elements. (3) That any offer contained in said instrument, Exhibit A, has never been accepted by the plaintiffs or either of them, and for the further reason that there has not been a tender to comply with the terms thereof, or to pay any price thereunder. (4) The plaintiffs have not brought themselves within any of the equitable rules entitling them to the specific performance of the contract, if any, here in question."

In granting the motion, the court said:

"The motion will be sustained on the grounds set forth by defendants' attorneys in their motion for nonsuit and dismissal."

It is thus made apparent upon what grounds the court granted the nonsuit. It is manifest that both the rulings and the motion are based entirely upon the language contained in the agreement, and not because of any evidence adduced, or for lack of evidence. We, therefore, need not discuss the evidence.

Taking up respondents' objections in the order stated in the motion for nonsuit, we first inquire, What, if...