Forrester v. Cook

• Decision Date: 11 October 1930
• Docket Number: 4843
• Citation: 77 Utah 137,292 P. 206
• Court: Utah Supreme Court
• Parties: FORRESTER v. COOK et al

292 P. 206

77 Utah 137

FORRESTER v. COOK et al

No. 4843

Supreme Court of Utah

October 11, 1930

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Diana Forrester against Harry F. Cook and another. From the judgment, defendants appeal and plaintiff cross-appeals.

REVERSED AND REMANDED for new trial.

Henry D. Moyle and J. M. Christensen, both of Salt Lake City, for appellants.

Leslie Frazer, of Salt Lake City, for respondent.

FOLLAND J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

This action is one in unlawful detainer wherein plaintiff by her complaint sought restitution of the premises described, being an apartment house, and damages for the unlawful withholding thereof, and for an attorney's fee. She also prayed that damages be trebled. An answer and counterclaim were filed by defendants and on motion of plaintiff the counterclaim was stricken. On the morning of the day of trial defendants filed amendments to the answer disclaiming any interest in the property in dispute as of that date and tendering possession thereof to plaintiff. The cause was thereupon tried upon the issues only of damages and attorney's fee. The court found that defendants unlawfully detained the premises from January 27th (date of expiration of five-day notice) to June 6th (date of trial) and the reasonable value of the use and occupancy of said property to be $ 210 per month; that the reasonable expense of maintaining and operating the property during the period of detention was 25 per cent of the rental value, or $ 52.50 per month, and gave judgment in plaintiff's favor for $ 690.50 damages; that being the rental value during the period mentioned less the amount indicated for maintenance and operation. This sum was trebled and judgment was entered for a total sum of $ 2,071.50. The court found that plaintiff was not entitled to recover an attorney's fee. Defendants made and served a motion for modification of the findings, conclusions of law, and judgment. The court after a hearing modified the conclusions of law and judgment by allowing $ 910 for use and occupation of the premises, which sum the court refused to treble. Judgment as modified was entered in favor of plaintiff for $ 910 only. In making this modification the court granted only part of the request made by defendants in their motion.

The defendants appealed from the judgment assigning many alleged errors. The plaintiff cross-appealed and assigned as error the refusal of the court to give judgment for attorney's fee and its refusal to treble the damages assessed for use and occupation of the premises.

We are first met with a motion by respondent to dismiss the appeal upon the ground "that the order appealed from is not a final judgment and therefore not appealable." The notice of appeal is as follows:

"You and each of you will please take notice that the defendants in the above entitled action hereby appeal to the Supreme Court of the state of Utah from the whole and every part of the judgment given you and entered by the above entitled Court in favor of the plaintiff and against the defendants on the 8th day of December, 1928, for the sum of $ 910.00 together with costs of suit in the sum of $ 27.90."

It is contended by plaintiff that this notice indicates an appeal only from the order of modification of judgment made on the 8th day of December and is not an appeal from the judgment entered on the 6th day of September, 1928. We think this position untenable because it is apparent that the appeal was taken, and was intended to be taken, not from the order of December 8th, but from the judgment and from the whole thereof as it took final form by modification or amendment on the 8th of December. A notice, such as the one here, indicating an intention to appeal from the entire judgment, with a description of judgment as dated the 8th of December and specifying the amount of the judgment, is a sufficient description. "The time of amendment of a judgment, order or decree, must be taken as the true date of rendition or entry, unless the amendment is in particulars not changing its character." 3 C. J. (Appeal and Error, § 1058) 1059; Mann v. Haley, 45 Cal. 63; Spencer v. Clark, 54 Utah 83, 179 P. 741; Candland v. Mellen, 46 Utah 519, 151 P. 341; Boucofski v. Jacobsen, 36 Utah 165, 104 P. 117, 26 L.R.A. (N.S ) 898. The cases cited by respondent, Schmidt v. Dreyer, 21 Colo. 100, 39 P. 1086, and Cullen v. Harris, 27 Utah 4, 73 P. 1048, go to the point that appeals can be taken only from final judgments and not from orders or rulings made either before or after judgment.

On or about May 19, 1924, plaintiff and defendants entered into a contract wherein the plaintiff agreed to sell and the defendants agreed to buy a certain apartment house in Salt Lake City called the Ivy Apartments for $ 17,100, of which $ 5,420.11 was credited as a cash payment, the balance of the purchase price to be paid in quarterly installments of $ 300 each to apply on principal and interest. The "cash" payment included a $ 3,000 mortgage on the apartment house theretofore made by plaintiff in favor of Walker Bros. Bankers, which the defendants agreed to assume and pay. The balance of the "cash" payment was made up of equities in two pieces of real estate. On May 24, 1924, a supplemental agreement was signed and acknowledged by plaintiff wherein it was said, after explanatory recitals, "it is by these presents understood and agreed that said Cook & Noyes have the privilege to extend said $ 3000 mortgage for an additional term of three years from the date of its maturity." The quarterly payments were made by defendants each and every quarter until November of 1927. The quarterly payment due November 17th was never paid. The $ 3,000 mortgage due Walker Bros. Bankers, which in the meantime had been renewed or extended once, became due and payable October 11, 1927. This mortgage was not paid. A dispute arose between the parties with respect to the renewal of this mortgage and other matters, and thereafter no further payments were made on the contract. Defendants called upon the plaintiff to renew the mortgage and offered, if she did so, to pay the quarterly installment then past due. This plaintiff refused to do. The contract of sale contained a forfeiture clause in the following language:

"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 sixty 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."

On January 21, 1928, plaintiff served upon defendants a notice declaring a forfeiture of the contract and demanding possession of the property. After particularly reciting the terms of the contract and the alleged acts of default, the notice contained the following:

"You and each of you will further take notice that by reason of your failure to make the payments hereinbefore referred to, you and each of you under the terms of said agreement have become and now are and are hereby declared to be tenants at will of the said Diana Forrester; and as such you and each of you are hereby required to vacate the said property hereinbefore described, and to surrender possession thereof to the said Diana Forrester within five days from the date of the service of this notice upon you; and upon your failure so to do legal proceedings will be instituted against you and each of you to recover possession of the said property."

Upon failure of defendants to comply with the notice and deliver possession of premises within five days, this action in unlawful detainer was commenced on January 28, 1928. A defense relied upon by defendants was that the supplemental contract set out above failed to express the exact intent of the parties. They alleged that it was intended that the mortgage should be renewable for additional terms of three years instead of for one such term; that the words "an additional term of three years," through a mistake of the scrivener, were written into the agreement instead of the words "additional terms of three years." A reformation of the agreement was prayed for on grounds of mutual mistake. Defendants proceeded upon the theory that if they were entitled to a reformation of the supplemental agreement of May 24th so that it provided for continuing renewals of the mortgage instead of merely one renewal or extension, then they were not liable in damages because plaintiff could not declare a forfeiture of the contract at a time when she herself was in default in failing to procure a renewal of the mortgage, assuming that the burden was upon her to procure such, and execute the same. This issue was fully tried. The trial court made findings against defendants' contention. It found that the supplemental agreement was executed by plaintiff without any consideration whatsoever and was and is unenforceable against her; that defendants exercised and exhausted the privilege granted in said supplemental agreement by procuring one extension of the mortgage; that the supplemental agreement did not fail...