Imlay v. Gubler
| Decision Date | 28 April 1931 |
| Docket Number | 4999 |
| Citation | 298 P. 383,77 Utah 547 |
| Court | Utah Supreme Court |
| Parties | IMLAY v. GUBLER |
Appeal from District Court, Fifth District, Washington County Dilworth Woolley, Judge.
Action by J. W. Imlay against Harmon Gubler, Jr. Judgment for plaintiff, and defendant appeals.
AFFIRMED.
Ernest H. Burgess, of Cedar City, for appellant.
W. B Higgins, of Fillmore, for respondent.
This action was brought to recover on a written contract for the unpaid purchase price of real estate sold by the plaintiff to and purchased by the defendant. Demurrers were interposed to the complaint. They were overruled. The defendant answered. On motion of the plaintiff, judgment on the pleadings was rendered and entered in favor of the plaintiff. Findings also were made by the court in favor of the plaintiff and against the defendant. The defendant appeals.
The assignments challenge the rulings overruling the demurrer and granting judgment on the pleadings and on the findings. A review of the rulings involves a consideration of the contract, a copy of which was attached to and made a part of the complaint. The contract was entered into January 1, 1927. By the terms thereof the plaintiff agreed to sell, transfer, and convey to the defendant certain lots fully described in Washington county and twenty shares of water stock in the St. George and Santa Clara Bench irrigation company, which properties the defendant agreed to purchase for the sum of $ 800, $ 100 of which was paid on the execution of the contract, and the balance to be paid in semiannual payments of $ 70 each, the first installment to be paid July 1, 1927, and $ 70 every six months thereafter until the balance was fully paid, together with 8 per cent interest on the deferred payments. The defendant also agreed to pay all taxes and assessments levied against the land and the water stock during the life of the contract. The contract also provided that the defendant was to be given immediate possession of the lands and the use of the water right. He was in possession of both when this action was commenced. It also was provided by the contract that, upon such payments being "punctually" made and upon full compliance by the defendant with all others terms and conditions of the contract, the plaintiff was to transfer and convey the land and the water right to the defendant. The contract further provided that:
"But in case default be made in said payments, or either of them or the taxes shall not have been paid each year, by the second party (the defendant) on the land and water rights herein described then this contract shall become null and void and the rights and interests of said purchaser (the defendant) shall be declared forfeited and the party of the first part (the plaintiff) shall have the right to re-enter and take possession of said property without recourse to law."
The contract was signed by both the plaintiff and the defendant. In the complaint it further is alleged that the only payment made by the defendant was the $ 100 paid when the contract was entered into, and that he failed to pay any of the installments thereafter, and when the action was commenced there were three installments due and unpaid amounting to $ 285.20 and interest due and unpaid on the remaining $ 700 of the purchase price, and that, because of the defendant's failure to pay the taxes, the plaintiff was required to pay and paid $ 40 in taxes. The plaintiff further alleged that, when the installments became due and remained unpaid, the defendant requested the plaintiff not to repossess the property, but to permit the defendant to remain in possession, and that, if he was permitted to do so, he would be able to pay and would pay the full amount due and unpaid on the contract, and that, in accordance with such request and promises, the plaintiff permitted the defendant to remain in possession of the premises and to enjoy the use and benefits thereof. The plaintiff prayed judgment for the amount due on the unpaid installments, together with interest on the $ 700 and for the amount paid by him for taxes, for which judgment was rendered and entered in the sum of $ 460.
The defendant by his answer admitted the execution on the contract as alleged in the complaint. While in his answer he denied "that there is now due from the defendant to the plaintiff the sum of $ 285.20 (the amount alleged in the complaint to be due and unpaid on the installments) or any other sum," which was a denial of a mere conclusion, yet affirmatively alleged in his answer "that the defendant failed to pay the installments as they became due as alleged in said complaint, and for such failure, the said agreement became null and void, which terminated said agreement, for the sale of said land and water was not a complete sale but only an executory contract, and the defendant could at any time terminate the same by failure to make the payments at the time they became due."
Nowhere in the answer did the defendant deny the allegations of the complaint of non-payment of the installments, or of any part thereof, nor did he aver that they or any part thereof had been paid. His denial of a mere conclusion of law that there was "due the plaintiff from the defendant the sum of $ 285.20 or any other sum" was based on his further averment in the answer that, because he had "failed to pay the installments as they became due as alleged in the complaint," the agreement became null and void and was terminated, and therefore there was not anything "due" the plaintiff thereunder. That presents the real controversy in the case, and it is upon such ground that the claim is made error was committed in overruling the demurrer and in granting judgment on the pleadings. In such respect the claim is made that, by reason of the forfeiture clause of the contract, in case default be made in payment of the installments, etc., "this contract shall become null and void and the rights and interests of said purchaser (the defendant) shall be declared forfeited and the party of the first part (the plaintiff) shall have the right to re-enter and take possession of said property without recourse to law," the contract, on defendant's failure to pay the first or any other installment, was terminated and became null and void, and that the only remedy the plaintiff had was to re-enter and take possession of the land and of the water stock and treat the first or initial payment of $ 100, the only payment made on the contract, as liquidated damages and as his only damage, and that the plaintiff had not the right to sue on the contract to recover any part of the purchase price remaining due and unpaid, or specifically to enforce the contract, or to take possession of the lands and recover damages for any breach of the contract, nor claim any damage beyond the payments made and forfeited by the defendant. In other words, and as stated by the defendant in his brief, the claim is made that "upon defendant's failure and refusal to perform or make further...
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Selvig v. Blockbuster Enters., LC
...a “default” under a real estate purchase agreement as the failure to pay the price due under the contract); Imlay v. Gubler, 77 Utah 547, 298 P. 383, 384–86 (1931) (describing a party's default under a standard real estate purchase contract as failure to pay amounts when due). 8. See, e.g.,......
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