Cutright v. Union Savings & Investment Co.

• Decision Date: 06 April 1908
• Docket Number: 1889
• Parties: CUTWRIGHT v. UNION SAVINGS & INVESTMENT CO
• Court: Utah Supreme Court

94 P. 984

33 Utah 486

CUTWRIGHT v. UNION SAVINGS & INVESTMENT CO

No. 1889

Supreme Court of Utah

April 6, 1908

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by A. H. Cutright against the Union Savings & Investment Company. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

J. M Thomas for appellant.

APPELLANT'S POINTS.

Where there is an agreement in writing between the parties, the vendor and vendee, and they afterwards agree that the vendee shall be released from the agreement to buy, and the vendor to hold the property, that the original writing, agreement or bond for deed should be destroyed, or surrendered, or a written transfer be executed to be within the statutes, but not if the writing is not surrendered or destroyed. (129 Ill 431; 31 Main 385; 11 Cal. 363; 4 New Hamp. 191; 4 Conn. 550; 17 Kan. 575; Sugden on Vendors, p. 255; Browne on St. Frauds, 5496.)

There is a marked distinction between an option to purchase or an agreement to purchase and a sale as is this case. (Mining Co. v. Jacobson, 30 Utah 115; 118 Mich. 148; 109 N. Car. 79; 72 N. Car. 321.)

A lease may be terminated by surrender of the keys and possession, but not a bond for a deed. (29 A. & E. Enc. of Law [2 Ed.], p. 681 and cases cited.)

The law is well settled, that if a corporation holds out to the public and allows one of its subordinate agents to receive money for it, it is estopped to deny his power to make the particular contract or receive the money. (123 N.Y. 343; 73 Am. Dec. 381; 90 Mich. 550; 23 P. 569; Taylor on Corp. 202, 236, 244.)

N. V. Jones for respondent.

RESPONDENT'S POINTS.

"There is no doubt but that an executory contract for the sale of land, whether written or oral, can be rescinded or waived, in equity by word of mouth, if possession be given up, or the writing destroyed, but not without something done by way of rescission or waiver." (Beggs v. Bodkin, 32 W.Va. 566; Stanley v. Purdue, 33 W.Va. 375; Urpman v. Oil Co., 53 W.Va. 511; Cunningham v. Cunningham, 46 W.Va. 4; Haugen v. Skjervheim, 13 N. Dak. 617; Staley v. Purdue, 33 W.Va. 375; Garver v. McNulty, 39 Pa. 437; Lauer v. Lee, 42 Pa. 165; Dayton v. Newman, 19 Pa. 194; Auer v. Penn. 92 Pa. 444; Raffensberger v. Cullison, 28 Pa. 426; McClure v. Jones, 121 Pa. 550; Evans v. Jacobitz, 67 Kas. 249.)

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

OPINION

FRICK, J.

The appellant brought this action to recover damages from the respondent for wrongfully withholding from appellant the possession and enjoyment of certain real estate of which appellant claimed to be the owner by the assignment of a contract to him by one Jenkins. The facts are substantially as follows: The respondent is a corporation incorporated under the laws of this state pertaining to building and loan associations, and during all of the times referred to in the proceedings in this case was engaged in the building and loan business, with its principal office in Salt Lake City. On the 2d day of October, 1905, the respondent entered into a written contract with one Arthur Jenkins, whereby it sold and agreed to convey to said Jenkins certain improved real estate in Salt Lake City for a consideration of $ 2,080. Jenkins paid $ 80 on said contract at the time of its execution, and the remainder was to be paid by him as follows: $ 20 or more on the 25th day of October, 1905, and $ 20 or more on the 25th of each succeeding month thereafter for the period of five years, or until the full sum of $ 2,000 with eight per cent. interest, was fully paid. When the full purchase price should be paid as aforesaid, respondent agreed to convey and warrant the title to said real estate to Jenkins or his assigns. The agreement contained the following provision: "And should the said Arthur Jenkins, or his assigns, fail to pay the said amount at the expiration of the time, and in installments and for thirty days above stated, then and in that case the above-mentioned payment and all subsequent payments to be forfeited as liquidated damages by reason of his failure to make such further payment." Jenkins took possession of the real estate and lived in the house thereon with his family and continued to make the monthly payments as provided by the agreement to and including March, 1906. He made no payments after that. Early in the month of May, 1906, he went to the office of respondent and informed its manager that he had moved out and would not make any more payments on the contract. Jenkins then said to the manager that "the contract as it stood was not satisfactory, and we (himself and wife) did not feel like going ahead and paying more on the house and then probably would lose it all later." The manager tried to persuade him to keep up his payments; but he said he would not pay any more, and that he and his wife had talked it all over and had decided to quit the place and had moved out, and that he had brought up the key to the house to turn it over to the manager. The manager then told Jenkins that he was in arrears one month, and that he ought to pay $ 20 in addition to the payments he had made. Jenkins refused to do this, but said that the whole amount he had paid was more than enough to cover the rent for the place for the time he had lived in it. The manager then took the key to the house from Jenkins. As to what was to be done with the contract the testimony of the manager and Jenkins did not agree. The manager testified that Jenkins agreed to bring it to the office in a day or two thereafter, while Jenkins says he does not remember of any such conversation or agreement. Jenkins, however left the property, and surrendered the key, which was accepted as aforesaid. A short time after the transactions last above stated, to wit, on the 21st day of May, 1906, the appellant went to see Mr. Jenkins about obtaining an assignment of the contract in question. Mr. Jenkins then told appellant that he (Jenkins had moved out; that he had given up the place and had delivered the key to the respondent at its office. Appellant, however, insisted that Jenkins still had the right to possession, and therefore could assign this right under the contract to appellant. Jenkins said he was willing to assign to appellant any rights Jenkins might have, but wanted it understood--and it was so understood between them--that Jenkins would not agree to place appellant in possession of the premises; that, if appellant wanted the assignment, he must take it at his own risk, or, as appellant stated it in his testimony: "I asked him if he had surrendered the contract or had made a transfer in writing of the contract or any portion of it, and he said he had not. Then I said: 'Under the conditions of that contract, you still have possession.' 'Well,' he says, 'if that is the interpretation of the contract, I have.' And he says: 'If I have possession of it under the conditions of that contract, I turn it over to you.' He didn't give me any warranty as to possession other than as he stated." With that understanding appellant took the assignment of the contract, and paid Jenkins $ 20 therefor. A few days after appellant had obtained the assignment of the contract he went to respondent's office and presented the contract and the assignment, together with a pass book issued to Jenkins to one of the clerks, and offered to pay the April installment due on the contract. The money was received by the clerk, and the payment receipted in the pass book. On the same day when the manager discovered what had been done he notified the attorney of respondent, who at once called up appellant, and in effect told him that the respondent would not recognize the assignment; that the property had been surrendered by Jenkins to respondent, and it had accepted the surrender; and that the contract between Jenkins and respondent had been mutually rescinded or abandoned, and that appellant would not be permitted to take possession of the property. After this appellant went to the property but found respondent's agent in possession, who refused to let appellant into possession, and appellant never obtained possession thereafter. Appellant thereafter tendered his monthly payments at the office of respondent, which were refused, except that several months thereafter one of the clerks received one of the installments, but it was at once returned to appellant as soon as the error was discovered by respondent's manager. The first monthly installment, however, was not returned to appellant until after this suit was commenced, it having been overlooked for some reason by the manager of respondent. The tenders of payment made after the first one were all made by appellant after he was told that his payments would not be accepted on the contract and that the respondent would not recognize his assignment thereof. No equities are involved either way. Under substantially the foregoing facts, the trial court instructed the jury to return a verdict in favor of respondent. Judgment was duly entered, from which this appeal is prosecuted.

Appellant assigns the ruling of the court in directing a verdict as error. His contention is that the sale of the real estate to Jenkins under which he went into possession transferred to him an interest in lands which could not be surrendered by him by parol; that the transactions between Jenkins and respondent in removing from the premises and giving up the key amounted to no more than an attempt to transfer or surrender an interest in real estate by parol, which is invalid under the statute of frauds. No doubt the transfer of any interest in real property, whether equitable or legal, is within the statute of frauds; and no such interest can either be created, transferred, or surrendered by parol merely. By this is meant...