McBride v. Stewart

• Decision Date: 29 July 1926
• Docket Number: 4387
• Citation: 249 P. 114,68 Utah 12
• Court: Utah Supreme Court
• Parties: McBRIDE v. STEWART

249 P. 114

68 Utah 12

McBRIDE v. STEWART

No. 4387

Supreme Court of Utah

July 29, 1926

Rehearing Denied September 22, 1926.

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by Mary A. McBride against George F. Stewart and another. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

F. W James, of Salt Lake City, for appellants.

S. P. Armstrong and J. M. Hamilton, both of Salt Lake City, for respondent.

GIDEON, C. J. THURMAN, FRICK, CHERRY, and STRAUP, JJ., concur.

OPINION

GIDEON, C. J.

This is an appeal on the judgment roll. Plaintiff had judgment and defendants appeal. Two questions are argued, namely: Does the complaint state a cause of action? and, Do the findings of fact support the judgment?

It is alleged in the complaint that on January 13, 1920, a written agreement was made between plaintiff and defendants whereby the defendants agreed to sell and plaintiff agreed to buy certain real property described. The contract was attached to the complaint as Exhibit A and made part of the same. It is alleged:

That the plaintiff went into possession of the premises under the contract, and retained possession until about June 14, 1923, at which time the "defendants ended said agreement and rescinded the same, and thereupon forcibly and without demand for performance of said agreement, and in her absence and without the knowledge or consent of plaintiff, entered upon and took possession of said premises, and forcibly ejected plaintiff therefrom, and ever since has continued in possession and occupancy thereof, ejecting plaintiff and depriving her of her possession."

It is provided in the contract that the buyer, plaintiff here, agreed to pay for the premises the sum of $ 1,800, of which $ 75 was to be paid upon the execution of the contract, $ 75 on the 20th day of February, 1920, and $ 30 or more on or before the 25th day of each following month until the purchase price had been fully paid, and that all deferred payments should draw 7 per cent interest per annum. It is also alleged that the plaintiff went into possession of the property, paid the $ 75 on February 20, 1925, and thereafter made payments until March, 1923. The total amount of the payments made by plaintiff was $ 1,202.29. In each of the months of March, April, June, and July, 1920, $ 30 was paid. No payment, apparently, was made in May. On August 20, 1920, the sum of $ 675 was paid. Thereafter payments were not made each month, and in some of the months only small amounts, as low as $ 5.35, were paid. In the months of September, October, and November, 1922, $ 30 was paid each month. It is also alleged that the plaintiff paid the water assessments for 1920, 1921, 1922, and 1923. It is further alleged:

That on June 9, 1923, plaintiff "tendered and was able and willing to pay defendants all balance remaining unpaid on said agreement of purchase, and offered fully to execute the same on her part; but defendants refused to accept such payment and offer, and to execute said agreement on their part."

It is then alleged that the reasonable rental value of the premises during the time they were occupied by the plaintiff, to wit, forty-one months, was $ 10 per month, or a total of $ 410. There is an allegation that the plaintiff had been damaged by the acts of defendants in terminating the contract, in the sum paid with interest from the dates of the respective payments, less the rental value of $ 10 per month, and judgment was asked for that amount.

The defendants demurred to the complaint. The demurrer was overruled. Thereafter answer was filed. The answer admits the execution of the contract; admits that the plaintiff paid certain amounts on the contract; denies that the amounts set out in paragraph 2 of the complaint are correct; denies all of the other allegations of the complaint.

The court found the issues in favor of the plaintiff, and its findings of fact are to the same effect as the allegations contained in the complaint--that is, it found the making of the contract, the entry into possession of the premises by plaintiff, the payments as alleged in the complaint, the tender made to the defendants on June 9, 1923, the refusal on the part of the defendants to accept the payment and offer to perform and to execute the agreement on their part as provided in the contract; that defendants on June 14, 1923, forcibly took possession of the premises, forcibly ousting plaintiff therefrom, and that they have ever since continued to occupy and possess the premises. The court found that the reasonable rental value of the premises was $ 16 per month. A finding was also made allowing defendants $ 100 damages to the house located on the premises, and permitted that as a set-off against the claims of the plaintiff. There is a general finding that all of the allegations of the complaint are true except as to the allegation of the rental value of the premises. As conclusions of law the court found that the plaintiff was entitled to judgment, naming the amount, and entered judgment accordingly, and the amount found due was made a lien upon the premises.

That the plaintiff was in default in making the payments as provided in the contract appears affirmatively from the allegations of the complaint. The total amount of payments made before the re-entry by defendants was equal to or greater than the sum of $ 30 per month, the minimum provided by the contract. The contract, however, was that the plaintiff should pay $ 30 or more per month. The payment of $ 675 in August, 1920, did not relieve the plaintiff of the duty under her contract, to pay $ 30 each and every month thereafter. The payment made, however, as alleged in the complaint and as found by the court, although less than the amount stipulated in the contract, were accepted by defendants, and, so far as this record shows, no objection was made as to the amount of payment made each month, nor was any demand made upon plaintiff that she make the payments as stipulated in the contract, or otherwise the contract would be terminated. That the action of defendants in repossessing the property, in the manner alleged in the complaint and refusing to give possession to the plaintiff amounted to and was a termination of the contract cannot well be questioned. In any event, no claim is made by the defendants that they did not so intend their acts. No offer is made in the answer or otherwise as appears in this record that the defendants were willing and able to carry out the provisions of the contract upon plaintiff performing her part thereof. As the writer understands the position of defendants, they rely upon the provisions of the contract as justifying the entry and possession of the premises, and the refusal to deliver possession to the plaintiff, and also their refusal to repay to plaintiff the purchase money paid by her. The provisions of the contract relied upon are as follows:

"Said buyer is entitled to the possession of said premises and may so continue unless forfeited by the nonpayment of the purchase money or any installments thereof or interest or any other payments as herein stipulated. On failure of said buyer, his heirs, administrators, executors, successors, or assigns to make any of the payments of said principal or interest, taxes or assessments or insurance premiums or charges when due, time being of the essence of this contract or on failure to comply with this agreement in any other respect, all payments made under this contract may, at the option of the seller, become forfeited to the seller and be retained and settled as liquidated damages; the parties hereto agreeing that it is impossible to estimate the actual damages, and thereupon the seller shall be released from all obligations in law and equity to convey said properties,...