O'Gorman v. Utah Realty & Construction Co.

• Decision Date: 19 October 1942
• Docket Number: 6456
• Citation: 129 P.2d 981,102 Utah 523
• Parties: O'GORMAN v. UTAH REALTY & CONSTRUCTION CO. et al
• Court: Utah Supreme Court

129 P.2d 981

102 Utah 523

O'GORMAN v. UTAH REALTY & CONSTRUCTION CO. et al

No. 6456

Supreme Court of Utah

October 19, 1942

For opinion on rehearing, see 102 Utah 534; 133 P. 2d 318.

Appeal from District Court, Third District, Salt Lake County; Dallas H. Young, Judge.

Action by Maude O'Gorman against Utah Realty and Construction Company and others to rescind a real estate contract and for return of money paid on account wherein defendant Ruth Hampton and another filed a counterclaim. From a judgment for defendants, plaintiff appeals.

Reversed with instructions to grant a new trial.

C. E Norton, of Salt Lake City, for appellant.

Ball &amp Musser, Edward F. Richards, and Romney, Faux & Boyer, all of Salt Lake City, for respondents.

WOLFE Justice. LARSON and McDONOUGH, JJ., WADE, District Judge MOFFAT, Chief Justice, concurring. PRATT, J., on leave of absence.

OPINION

WOLFE, Justice.

Plaintiff, the buyer under a real estate contract for the sale of real property, brought this action to rescind on the ground of fraud and for the return of money paid on account. Defendants Hampton denied fraud and alleged by counter-claim that they had exercised their option to forfeit the contract on account of plaintiff's default. Plaintiff replied setting up a purported estoppel. The Utah Realty and Construction Company as agents for the Hamptons denied fraud. The Court gave judgment for the defendants on this counterclaim and against plaintiff on her charge of fraud. From this judgment plaintiff appeals.

Mrs. O'Gorman, a widow 55 years of age, came to Salt Lake City from the east and entered into negotiations with the Utah Realty and Construction Company acting as agents for Eli and Ruth Hampton, defendants and respondents herein, for the purchase of two duplex houses. A so-called uniform real estate contract was entered into between the Hamptons and appellant on December 6, 1940, in which appellant, as purchaser, covenanted among other things, to pay a total purchase price of $ 13,000 payable $ 1,000 down, $ 85, plus one-twelfth of the annual taxes each month and interest until paid in full. She further covenanted to remodel and construct a five-room apartment in the attic of one of the duplex houses, to be completed in six months.

Plaintiff took possession on December 31, 1940, and, it is alleged, paid $ 1,000 down, $ 212 on the contract, and $ 800 for construction work on the attic; a total expenditure of $ 2,012.00. Plaintiff, by her counsel, prayed for a judgment of $ 1,800. No mention was made in the prayer of the $ 212 expended in the performance of the contract.

To the complaint, the defendants filed general and special demurrers. The court sustained the demurrers. Plaintiff filed an amended complaint. Defendants Eli and Ruth Hampton filed an answer and counterclaim denying the allegations set forth in the amended complaint, admitting a contract of December 6, 1940, and that the plaintiff went into possession of the premises, paid $ 1,000 down payment, and the further sum of $ 85 on or about January 31, 1941, and $ 85 on or about March 11, 1941. Defendants Hampton further allege that by the terms of the contract, the defendants at their option would be released of all obligation to convey the premises, and that all payments made by the purchaser should be declared forfeited as liquidated damages if the purchaser defaulted on the contract; that on March 10, 1941, the defendants did declare such a forfeiture and gave the plaintiff notice to vacate within five days. That the plaintiff has refused to surrender possession and that the plaintiff has damaged the premises to the extent of $ 300. They pray that the contract be declared terminated, that the payments made by the plaintiff be declared forfeited, that defendant be given treble damages and the reasonable rental value of premises since March 15, 1941, and that a receiver be appointed pending the outcome of the action. The Utah Realty & Construction Company and Roy Chapman answered denying all allegations of the amended complaint admitting only that at the time mentioned they were agents of Eli and Ruth Hampton and that plaintiffs paid the seller $ 1,000. In reply to the counter-claim the plaintiff alleged that the Hamptons should be estopped from declaring a forfeiture under the contract because they had mortgaged the premises and assigned the contract of sale to the Tracy Loan and Trust Company and thereby prevented strict compliance with the contract.

A receiver was appointed by the court as requested by the defendants Hampton. They proceeded to trial and judgment was given in favor of the defendants. From this judgment plaintiff appeals.

There are seven assignments. They are not clear cut, are argumentative, and leave doubt in places as to the real basis of the assignment. However, we shall, in every case, give each assignment the benefit of the doubt and when it seems to have been intended to attack a ruling, examine that ruling for its correctness regardless of the basis which may be assigned for its claimed incorrectness.

The first assignment urges that the general demurrer to the complaint was improperly sustained. If there was any error in such ruling, it was cured by pleading over. 1 Bancroft on Code Pleading, § 225, p. 374; Zion's Savings Bank & Trust Co. v. Mountain-Lakes Poultry Farms, Inc., 98 Utah 410, 419, 100 P.2d 212; Voyt v. Bekins Moving & Storage Co., Or., 119 P.2d 586; Alhambra Transfer & Storage Co. v. Muse, 41 Cal.App.2d 92, 106 P.2d 63.

The second assignment asserts that the court erred in not sustaining the demurrer to the counter-claim. Before there was a ruling on the demurrer to the counter-claim, the counter-claim was amended. There was no demurrer to the amended counter-claim. There is nothing in the record brought to this court which shows a ruling on the demurrer, nor is there an order denying a motion to have the demurrer argued or have the court rule thereon. It was certainly as much the duty of the plaintiff as it was of the defendant to have a day set for argument and a ruling on the demurrer. Therefore, there does not appear in the record any ruling on the demurrer which can be attacked by assignment. The failure of plaintiff's counsel in this regard cannot be urged as a basis for reversal of the court's judgment.

The third assignment urges error in that the court made no finding of fact on the material issue of estoppel. In her reply the plaintiff alleged that the Hamptons should be estopped from declaring a forfeiture under the contract because they had assigned the contract to the Tracy Loan and Trust Company and thereby prevented strict compliance by the plaintiff with the terms of the contract. This did not purport to be an allegation of incapacity on the part of the Hamptons to declare a forfeiture on the theory that they were no longer the owners of the contract. The counter-claim of the defendants is based on their right to declare a forfeiture under the contract. An allegation that the defendants had assigned the contract and therefore had no capacity to declare such a forfeiture would of course, require the court to make a finding on this issue. But such was not the intendment of this pleading. The allegation was made as a basis of an estoppel and not incapacity. In effect, estoppel admits ownership of the contract in the Hamptons and admits that they have a technical right to declare a forfeiture but asserts they should be estopped from showing the true facts. If the plaintiff contended that by assignment the defendants Hampton had put it beyond their power to declare a forfeiture estoppel would not have entered into the picture. Estoppel is consistent only with a right to forfeit which it is claimed the court should not, for reasons of equity, permit.

It is well established that a direct issue of a specific material fact requires a finding on that issue. Hall v. Sabey, 58 Utah 343, 198 P. 1110; Miller v. Mt. Nebo Land & Irr. Co., 37 Utah 1, 106 P. 504. There must be a finding on all material issues. Prows v. Hawley, 72 Utah 444, 271 P. 31; Everett v. Jones, 32 Utah 489, 91 P. 360. Hence, if in her reply plaintiff pleaded a good estoppel, the court erred in not making a finding on the issue thus raised. The facts alleged as a basis for the estoppel are that the defendant by mortgaging the premises and assigning the contract prevented the plaintiff from proceeding with construction of the new apartment in the attic of one of the houses. These facts do not raise an estoppel. There is no allegation of how the assignment and mortgage interfered with the plaintiff's right to proceed with construction. Admittedly, they were made subject to the plaintiff's rights. The plaintiff had possession of the premises. No facts are set out by the reply from which the court can hold the defendants estopped from declaring the forfeiture under the contract. There was no prejudicial error in this regard.

The next three alleged errors may be considered together. Plaintiff claims the court erred in appointing a receiver; in failing to allow plaintiff to file a supplemental complaint and to tender specific performance to the Tracy Loan and Trust Company; and by its refusal to grant a new trial.

There is no transcript of the evidence before the court. We must therefore assume the findings of the trial court are supported by evidence. Raphael v. Wasatch & J V. R. Co., 34 Utah 97, 95 P. 1008; Fernelius v. Fernelius, 77 Utah 395, 296 P. 244; L Bar Cattle Co. v. Board of Trustees , 46 N.M. 26, 120 P.2d 432; Hecla Gold Mining Co. v. Gisborn, 21 Utah 68, 59 P. 518. We can not say the court erred in appointing a receiver, or in refusing to allow the plaintiff to file a supplemental complaint and tender specific performance of the...