Goodman v. Newzona Inv. Co.

• Decision Date: 07 December 1966
• Docket Number: No. 8794--PR,8794--PR
• Citation: 421 P.2d 318,101 Ariz. 470
• Parties: Tyler D. GOODMAN and Joyce F. Goodman, husband and wife, and John M. Tollefson and Marjorie H. Tollefson, husband and wife, Appellants, v. NEWZONA INVESTMENT CO., Inc., an Arizona corporation, and Northern Arizona Title Co., an Arizona corporation, Appellees.
• Court: Arizona Supreme Court

Page 318

421 P.2d 318

101 Ariz. 470

Tyler D. GOODMAN and Joyce F. Goodman, husband and wife, and John M. Tollefson and Marjorie H. Tollefson, husband and wife, Appellants, v. NEWZONA INVESTMENT CO., Inc., an Arizona corporation, and Northern Arizona Title Co., an Arizona corporation, Appellees.

No. 8794--PR.

Supreme Court of Arizona, In Banc.

Dec. 7, 1966.

Rehearing Denied Jan. 3, 1967.

Lesher, Scruggs, Rucker, Kimble & Lindamood, Tucson, for appellants.

Herbert B. Finn, Stephen T. Meadow, Phoenix, for appellees.

STRUCKMEYER, Chief Justice.

Appellants filed an action in the superior court asking that a deed from Northern Arizona Title Company to Newzona Investment Company, Inc., be declared void and that Newzona be declared to have no right, title or interest in certain real property in which appellants asserted the beneficial interest. Appellees' motion to dismiss appellants' complaint was granted by the trial court. The Court of Appeals, Division One, affirmed. 3 Ariz.App. 282, 413 P.2d 792. Opinion of the Court of Appeals vacated.

These salient facts control the decision: On June 15, 1961, appellants, as sellers, entered into a written agreement with Newzona for the sale of approximately 880 acres of land in Coconino County, Arizona. The property was conveyed by appellants to Northern Arizona Title Company, as trustee, to hold that title and to administer the agreement. A part payment was made upon execution of the contract, and the balance was to be paid in ten annual installments commencing on July 1, 1962. Newzona made the payments due on July 1, 1962 and July 1, 1963, but failed to make the payment due on July 1, 1964.

The agreement provided that Newzona was entitled to secure, in ten-acre lots, the release by the Title Company of as many acres as a payment would buy at $65.00 an acre. Nowzona did not secure the release of any lots after the 1962 and 1963 payments. However, on August 20, 1964, after the failure to make the payment due on July 1, the Title Company deeded to Newzona acreage to the extent of the annual payments made in 1962 and 1963.

The ageement also contained what may be described as a 'full performance' clause:

'* * * full performance by (Newzona) of all of its obligations hereunder is and shall be a condition precedent to its right to have a conveyance of the lots held hereunder and its rights to have performance hereof.'

Appellants' position is simple: That Newzona was not entitled to a release of any lots on August 20, 1964, because it had not fully performed all of its obligations under this clause.

At this point it would seem plain, from the language of the full performance clause and the customery rules of construing written instruments, that Newzona was not entitled to the acreage transferred to it, since it had not performed by making the payment of July 1, 1964. Where parties bind themselves by a lawful contract, in the absence of fraud a court must give effect to the contract as it is written, and the terms or provisions of the contract, where clear and unambiguous, are conclusive. Galbraith v. Johnston, 92 Ariz. 77, 373 P.2d 587. The intent of the parties, as ascertained by the language used, must control the interpretation of a contract. It is not within the province or power of the court to alter, revise, modify, extend, rewrite or remake an agreement. Its duty is confined to the construction or interpretation of the one which the parties have made for themselves. Graham County Electric Co-op., Inc. v. Town of Safford, 95 Ariz. 174, 383 P.2d 169. Where the intent of the parties is expressed in clear and unambiguous language, there is no need or room for construction or interpretation and a court may not resort thereto. Neale v. Hinchcliffe, 21 Ariz. 452, 189 P. 1116.

Notwithstanding, Newzona points to a clause in the agreement which provides:

'If default be made in the payment of principal or interest * * * and such default be not remedied within thirty days after notice to (Newzona), then (appellants) may declare a forfeiture of all rights of (Newzona) * * *. (Newzona) shall be deemed to be in default only when written notice thereof has been filed with the (Title Company) * * *.'

It is argued that because appellants had not filed a written notice declaring Newzona in default at the time the deed was executed on August 20, 1964, the right still remained to secure a transfer of the lots.

Newzona misconceives the purpose of the provision for a written default. The notice of default is necessary as a condition to exacting a forfeiture of the contract. Such notice of default has no connection with the full performance clause as set forth in the written agreement. One of appellants' rights was to prevent a conveyance of any acreage unless Newzona had fully performed all of its obligations At the time of the conveyance. This was a right wholly separate and independent of the right to exact a forfeiture and was not...