Marsh v. Butters
| Decision Date | 08 May 1961 |
| Docket Number | No. 2965,2965 |
| Citation | 361 P.2d 729 |
| Parties | Earl L. MARSH and Vernena M. Marsh, Appellants (Defendants below), v. Lucille H. BUTTERS, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Raymond B. Whitaker, Casper, for appellants.
Harry E. Leimback and J. F. Mahoney, Casper, for appellee.
Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.
The defendants, who are husband and wife, agreed to purchase an apartment house in Casper, Wyoming, from plaintiff for a total purchase price of $49,712.45. The terms of the agreement were expressed in a purchase agreement dated March 26, 1959. Said purchase agreement provided that buyers had made a $10 down payment and that they assumed and agreed to pay an existing mortgage upon which there was an unpaid balance of $18,932.84. With respect to the remaining balance buyers agreed to assign all of their right, title and interest to seller 'in that certain instrument termed 'Second Contract for Deed,' as partial payment in the amount of $30,769.61, which is further identified as being in escrow with the Phoenix Title & Trust Company, 201 Second Ave., Yuma, Arizona.' Other provisions of the agreement which are pertinent to a decision in this case are contained in paragraph 12 which reads as follows:
Undisputed evidence in the case shows that the second contract for deed referred to in the purchase agreement between plaintiff and defendants had come into existence as a result of these facts: The defendants, Mr. and Mrs. Marsh, were previously purchasing the Tamarak Trading Post business at Roll, Arizona, from George W. Stinger and wife. Said business was known as Roll Mercantile & Enterprises, Inc. Then on December 20, 1958, defendants had resold such business to Charles Keirsey, Jr. and Sonia C. Keirsey, husband and wife, under the aforesaid second contract for deed. According to their contract, the total sale price to the Keirseys was $105,000 payable in this manner:
$ 1,000.00 as a down payment, to apply
on inventory
$ 1,000.00 due January 20, 1959, to apply
on inventory
$10,000.00 with interest at 6%, in
payments of $443.21 or more per
month, to apply on inventory
$69,621.50 with interest at 6%, in
payments of $400 or more per
month, payable to Phoenix
Title & Trust Company for
Stinger
$23,378.50 with interest at 5%, in
payments of $97.41 per month for
the first 2 years, being interest
only, and thereafter $300 or
more per month.
Mrs. Keirsey testified that a note for $2,200 had been given to the Marshes to cover sums owing to them aside from the monthly payments. The monthly payments added up to $940.62 for each month during the first two years. Thereafter they would total $1,143.21 per month. None of these payments were made, except for payments to Phoenix Title & Trust Company, and the undisputed evidence establishes that Mr. and Mrs. Keirsey went broke and left the business entirely during the month of June, 1959. On June 24, 1959, attorneys for the Keirseys notified Mr. Marsh by letter that Keirseys were rescinding their contract because of alleged misrepresentations made prior to the execution of such contract. He was advised that he might have possession of the property at any time and was told where the keys could be obtained. Also, on July 31, 1959 Mr. and Mrs. Stinger declared a forfeiture of their contract for nonpayment of installments and notice thereof was served upon Mr. and Mrs. Marsh, with a copy to Mrs. Butters.
In the meantime plaintiff notified Mr. Marsh by a letter from her attorney, dated June 1, 1959, that she had decided to rescind her sale under the provision in paragraph numbered 12 of the purchase agreement. Demand was made for a return of her property together with rents and other benefits received. The letter then stated: 'Will you please indicate to us what instruments you need, if any, to restore you to the same status you were in prior to the execution of this purchase agreement.'
The Marshes refused to deliver up the premises held by them and action for possession and damages was then commenced. Said action resulted in a judgment favorable to plaintiff for recovery of possession of the apartment house, for an accounting of rents and profits, for an attorney's fee of $500 and for costs. From this judgment defendants have appealed.
The defendants by their agreement represented to plaintiff that the business in Arizona, which plaintiff had not seen, 'is a well established, going concern, and fully capable of making the payments heretofore mentioned in said 'second contract for deed." Said agreement then provided that if it is determined that buyers have misrepresented said property, then this purchase agreement shall be set aside, and the parties returned to the status they had before this agreement. It is apparent from the judgment entered, and especially from special findings of fact made by the trial judge at the request of defendants, that it was so determined by the district court. This court will not undertake to determine or say whether defendants did or did not misrepresent said property. It must necessarily, however, pass upon the question as to whether there was sufficient evidence to support the findings of the trial court, at least with respect to one of the three things represented about the Arizona business.
The general presumption on appeal is in favor of findings made by the lower court, and it is well settled that this court will assume that all evidence in appellee's favor is true; leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith; and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn...
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Gill v. Gill
...inference which may be reasonably and fairly drawn from it. In addition to the cases mentioned by appellant's counsel, see Marsh v. Butters, Wyo., 361 P.2d 729, and cases cited. There was substantial evidence before the trial judge, and we feel that he could have reasonably and fairly drawn......
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Neel v. State, 3715
...offer evidence in their own behalf. We have so held several times in civil cases. In re Shreve, Wyo., 432 P.2d 271, 273; Marsh v. Butters, Wyo., 361 P.2d 729, 732. Our review of cases on this point convinces us that the same rule has been universally followed in criminal cases to the same e......
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Exploration Drilling Co. v. Guthrie
...Also, as we have repeatedly said, testimony favorable to the unsuccessful party in conflict therewith may be disregarded. Marsh v. Butters, Wyo., 361 P.2d 729, 731. In this particular case, however, it appears on the face of the record that there is probably as much in the testimony of Dr. ......
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Shreve, In re, 3591
...evidence and at the time the parties finally rest the evidence is sufficient to make out a case for the plaintiff. Marsh v. Butters, Wyo., 361 P.2d 729, 732; Boyle v. Mountford, 39 Wyo. 141, 270 P. 537, Appellant urges that the reports of the welfare department were improperly received. At ......