Goldthait v. Lynch

• Decision Date: 22 June 1893
• Court: Utah Supreme Court
• Parties: JOHN W. GOLDTHWAIT, RESPONDENT, v. JOHN T. LYNCH AND ANOTHER, APPELLANTS. JOHN W. GOLDTHWAIT, APPELLANT, v. WILLIAM J. CROWTHER AND OTHERS, RESPONDENTS

33 P. 699

9 Utah 186

JOHN W. GOLDTHWAIT, RESPONDENT, v. JOHN T. LYNCH AND ANOTHER, APPELLANTS.

JOHN W. GOLDTHWAIT, APPELLANT, v. WILLIAM J. CROWTHER AND OTHERS, RESPONDENTS

Supreme Court of Utah

June 22, 1893

CROSS-APPEALS from a judgment of the district court of the third district and from an order refusing a new trial, Hon Thomas J. Anderson, judge. The opinion states the facts.

Reversed and remanded.

Mr John W. Judd and Mr. Jabez G. Sutherland, for the appellant and respondent Goldthwait.

Messrs. Zane and Putnam, for the appellants Lynch and Glassman.

Mr. Arthur Brown, for respondent Crowther.

Messrs. Williams and Van Cott, for the respondents Kelsey and Gillespie.

SMITH, J. MINER, J., and BARTCH, J., concurred. ZANE, C. J., having been of counsel, did not sit in this case.

OPINION

SMITH, J.:

This action was commenced by plaintiff to compel the specific performance of a contract for the sale of real estate, or, if this could not be had, for damages for breach of contract of sale. The court refused a decree of specific performance, but gave judgment for damages against defendants Lynch and Glassman. Plaintiff appeals from the refusal to grant specific performance. The defendants Lynch and Glassman appeal from the judgment against them for damages. The defendants Crowther, Kelsey, and Gillespie resist the appeal of plaintiff. The plaintiff resists the appeal of Lynch and Glassman.

Respondents claim that plaintiff has waived his right to ask for specific performance by taking his judgment for damages. We think this position is well taken. Plaintiff is here in this court insisting that his judgment against Lynch and Glassman be enforced, and at the same time is asking for a conveyance from Crowther of the property he contracted for; in other words, for specific performance of the very contract the breach of which occasioned this damage. The case of Murphy v. Spaulding, 46 N.Y. 556, is directly in point that this appeal of plaintiff cannot be maintained.

There is another reason why plaintiff cannot be heard to claim a specific performance of his contract. It is shown by the findings of fact, and the finding is not disputed, that in February, 1888, long before this action was commenced, the defendant Glassman and wife, who then held the title which Crowther now holds, tendered a warranty deed therefor, properly executed, to the plaintiff, which plaintiff refused to accept. It is difficult to conceive a rule of equity that will permit the plaintiff at this time to claim a specific performance of a contract which he, when called upon so to do, refused to perform; for plaintiff, when this deed was tendered him, refused to accept it, and refused to pay the purchase money due according to the contract. The contract between plaintiff and Lynch and Glassman was mature when this deed was tendered, and Glassman's title then was the same as Crowther's is now. It would seem that to allow plaintiff to claim a specific performance now would be highly inequitable and unjust. The judgment denying specific performance is affirmed.

This brings us to the appeal of Lynch and Glassman. The facts, so far as is material on their appeal, are as follows: On November 3, 1887, the plaintiff and Lynch and Glassman made a contract in writing as follows:

"Received of John W. Goldthwait the sum of one hundred dollars, the receipt whereof is hereby acknowledged, as earnest money on the following described property, to wit: Commencing 80 rods south of the center of section 3, township 1 south, range 1 west; thence west 60 rods; thence south 80 rods; thence east 60 rods; thence north 80 rods,--being the east three-quarters of the southeast quarter of the southwest quarter, section 3 of said township and range. The conditions of the above are that the said John W. Goldthwait has purchased from the undersigned the above-described real property for the sum of thirty-four hundred and fifty dollars, payable , $ 2,000 in cash, balance in one year, at 10 per cent. interest, secured by mortgage on said thirty acres of land. And the undersigned hereby agrees to furnish to the said John W. Goldthwait, or his assigns, within 30 days from date hereof, an abstract of title and warranty deed, at their own expense, satisfactory to the said John W. Goldthwait or his assigns, showing a clear and unincumbered title in themselves; and, upon furnishing of said title within the time herein stated, the said John W. Goldthwait, or his assigns, agree to pay to the undersigned the balance of the purchase money; and, should he or his assigns fail to pay said amount at the expiration of the time above stated, then, and in that case, the earnest money to be forfeited, and the parties hereto to be relieved from further obligations in the premises. Signed, sealed, and delivered at Salt Lake City, this the 3d day of November, 1887.

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