Hurwitz v. David K. Richards Co.

• Decision Date: 24 January 1968
• Docket Number: No. 10956,10956
• Citation: 436 P.2d 794,20 Utah 2d 232
• Court: Utah Supreme Court
• Parties: d 232 Madeline B. HURWITZ and Bernice B. Littlefield, Plaintiffs and Respondents, v. DAVID K. RICHARDS COMPANY, formerly Land Investments, Defendant and Appellant, Eleanor H. Blackburn, Defendant and Respondent, and Walker Bank & Trust Company, Defendant.

Page 794

436 P.2d 794

20 Utah 2d 232

Madeline B. HURWITZ and Bernice B. Littlefield, Plaintiffs and Respondents, v. DAVID K. RICHARDS COMPANY, formerly Land Investments Defendant and Appellant, Eleanor H. Blackburn Defendant and Respondent, and Walker Bank & Trust Company Defendant.

No. 10956.

Supreme Court of Utah.

Jan. 24, 1968.

Strong & Hanni, and David K. Winder, Salt Lake City, for plaintiffs-respondents.

E. L. Schoenhals, Salt Lake City, for defendant-respondent, Eleanor H. Blackburn.

Cannon, Greene, Piercey, Nebeker & Horsley and DeLyle H. Condie, Salt Lake City, for defendant-appellant, David K. Richards Co.

Kent B. Linebaugh and Ray, Rawlings, Jones and Henderson, Salt Lake City, for defendant, Walker Bank and Trust Co.

ELLETT, Justice:

On November 8, 1960, Eleanor Blackburn and her husband, as sellers, and the predecessor of David K. Richards & Company, a corporation, as buyer, entered into a written contract for the sale of 4.11 acres of land for the sum of $38,000.00, payable $1,000.00 at the time of executing the agreement, $4,000.00 on or before February 1, 1961, and $5,500.00 on or before the first day of February of each succeeding year until the balance was paid in full. It was further agreed that the purchaser was to subdivide the land, and after the first $5,000.00 was paid, the parties would set up an escrow agreement whereby warranty deeds covering each lot would be deposited with the escrow agent to be delivered to the purchaser upon his paying therefor a sum later determined to be $2,200.00 per lot.

The way this amount per lot was ascertained was as follows: There was a house which was to be on one lot, for which the purchaser agreed to pay $16,000.00. The remaining $22,000.00 was to be divided by the number of lots carved out of the remainder of the land. Ten lots in addition to the home lot were surveyed, and the $22,000.00 divided by 10 would give the $2,200.00 figure per lot. The escrow agreement was entered into on July 19, 1961, and provided that a warranty deed would be given to the purchaser for each lot sold upon the payment of $2,200.00 except that Lot 4, which contained the house, would be deeded and the sellers would vacate the house upon the payment of $16,000.00 therefor.

The purpose of the buyer in entering into the contract was to subdivide the land and sell the vacant lots. It sold those lots at prices ranging between $4,800.00 and $5,500.00 each.

According to David K. Richards, the owner of all of the stock of the corporation, he had sold all the vacant lots by the end of the year 1963. However, the escrow agent testified that the last deed was delivered to Richards in June of 1965.

Mr. Blackburn died on June 14, 1963, and Mrs. Blackburn was adjudicated an incompetent on September 30, 1963. David K. Richards in his deposition said that he notified the escrow agent when he picked up the last deed to the vacant lots that he would not pay the $16,000.00 for Lot 4, although he never did notify Mrs. Blackburn or her guardian that he did not intend to complete his contract.

It appears that Richards, having gotten all of the profits from the transaction, was looking for an 'out' from the less lucrative part of his agreement. His testimony indicates that he was relying on statements he claims were made prior to the escrow agreement to the effect that the Blackburns had changed their minds and did not want to live in an apartment but desired to remain in the house on Lot 4. He claims that this is an anticipatory breach of the contract and that he was thereby relieved from buying that lot. It will be noted that this claimed conversation occurred prior to the written escrow agreement which he signed.

He also claims that upon the death of Mr. Blackburn he went to see the widow and found her crying. In his deposition he testified as follows:

A She was all broken up at the time of his death and didn't know what she was going to do and she appeared to sound to me like I was going to maybe try to move her out of the house after they had been living there that long. So far as I was concerned, I didn't have any intent to move her out of the house.

Q Would it be correct that at the time you suggested something in substance and effect, 'Mrs. Blackburn, you don't need to woory about the house, you stay here as long as you like'?

A I may have told her something to that effect. I felt like by now, so far as I was concerned, they had decided to stay in the house and we had a divided contract.

Q What contract?

A I felt my obligation under the contract to pay for the house, now after five years, was no more because they had decided to keep the house and stay in it. When our original deal was that they would move out in the spring, I was completely sold out to them.

Richards cannot claim an anticipatory breach of the escrow agreement even if theretofore the Blackburns had expressed a desire to remain in the old home. If Richards thought there was an anticipatory breach of the contract, he should have said something about it at the time. He does not claim that either Mr. Blackburn or Mrs. Blackburn said that they would not perform the contract. He only claims that they said that they had some misgivings about moving out of the old home and that Mrs. Blackburn wanted to stay in it until she died. This is not sufficient to declare an anticipatory breach.

Such a matter was before the Arizona Supreme Court in the case of Diamos v. Hirsch, 91 Ariz. 304, 372 P.2d 76, wherein at page 78 of the Pacific Reporter it is said:

We have recognized that an action may be maintained for breach of contract based upon the anticipatory repudiation by one of the parties to the contract. (Citation omitted.) It is well established that in order to constitute an anticipatory breach of contract there must be a positive and unequivocal manifestation on the part of the party allegedly repudiating that he will not render the promised performance when the time fixed for it in the contract...