McMullin v. Shimmin, 8998

Decision Date01 March 1960
Docket NumberNo. 8998,8998
Citation10 Utah 2d 142,349 P.2d 720
Partiesd 142 Robert L. McMULLIN, Appellant and Plaintiff, v. Lynwood F. SHIMMIN and Jacquie A. Shimmin, Respondents and Defendants.
CourtUtah Supreme Court

Robert B. Hansen, Salt Lake City, for appellant.

Cotro-Manes and Cotro-Manes, Salt Lake City, for respondent.

ANDERSON, District Judge.

Plaintiff's complaint was dismissed at the pre-trial conference. He had sought specific performance or damages to complete the purchase of the subject property after having made a written offer and depositing $100 thereon as earnest money. Plaintiff appeals.

Defendants signed a uniform Earnest Money Receipt and Offer to Purchase the real property. Plaintiff accepted the offer.

Plaintiff says defendants breached its terms by refusing to complete the purchase. Defendants deny any liability. They paid plaintiff $100 at the inception of the contract, but plaintiff never has returned or offered to return the same. Four months later plaintiff sued for specific performance, praying in the alternative for damages incident to the breach. Three months after the action was commenced, plaintiff sold the property to others. At pre-trial the court dismissed plaintiff's complaint for failure to return or offer to return the earnest money prior to suit.

The principal issue is whether or not Andreasen v. Hansen 1 is controlling. Both the Andreasen case and the case here had to do with the sale of real property with an earnest money receipt as a vehicle for its consummation. Each receipt contains the following:

'In the event the purchaser fails to pay the balance of the said purchase price or complete said purchase as herein provided, the amounts paid hereon shall, at the option of the seller, be retained as liquidated and agreed damages.'

In both cases the earnest money was retained by the seller.

The plaintiff here acknowledges that in the Andreasen case it was held that where there has been a retention of the deposit by the seller, an action will not lie for recovery of damages for breach of the contract. He urges, however, that inasmuch as the case here is one which includes an action for specific performance, such an election as this court recognized in the Andreasen case could not be a controlling precedent here. It is true that the action here, calling for specific performance, or else damages for the breach, is by this fact distinguishable from the Andreasen case. We are not, however, called upon to determine a situation where the only prayer for relief is based on specific performance alone. We will meet that problem when and if it arises.

Where, as here, plaintiff chose to sell to another after commencing suit for specific performance, he lost any equitable claim. As to the claim for damages, he meets the option clause of the contract limiting recovery to the amount of the deposit.

The only question as to whether such limit applies is whether or not the option has been exercised. Such option is exercised by retention of the down payment. The clause tells the parties that the seller need only to retain the sum to exercise his right to keep it. The seller chooses the language. His retention becomes meaningful when he claims the buyer has breached...

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8 cases
  • Phillips v. Gomez
    • United States
    • Idaho Supreme Court
    • November 8, 2017
    ...Phillips availed himself of the earnest money, he foreclosed his ability to pursue actual damages. See, e.g. , McMullin v. Shimmin , 10 Utah 2d 142, 349 P.2d 720, 720–21 (1960) (holding that the seller's retention of the deposit evidenced an election of liquidated damages by the seller). Fu......
  • Rocky Mountain Hospitality, LLC v. Mountain Classic Real Estate, Inc.
    • United States
    • Utah Supreme Court
    • December 22, 2022 which the court analyzed four of our cases — Andreasen v. Hansen ,20 Dowding v. Land Funding Ltd. ,21 Close v. Blumenthal ,22 and McMullin v. Shimmin ,23 —and determined that those cases "uniformly hold that before a seller may pursue a remedy other than liquidated damages, the seller mu......
  • Mountain Courtyard Suites v. Wysong
    • United States
    • U.S. District Court — District of Utah
    • April 6, 2020
    ...Funding Ltd. , 555 P.2d 957, 957 (Utah 1976) ; Close v. Blumenthal , 11 Utah 2d 51, 354 P.2d 856, 857 (1960) ; McMullin v. Shimmin , 10 Utah 2d 142, 349 P.2d 720, 721 (1960) ; Andreasen v. Hansen , 8 Utah 2d 370, 335 P.2d 404 (1959) ; McKeon v. Crump , 53 P.3d 494, 497–98 (Utah Ct. App. 200......
  • Palmer v. Hayes, 940416-CA
    • United States
    • Utah Court of Appeals
    • March 24, 1995
    ...offer to return deposit opted for liquidated damages and were precluded from seeking specific performance); McMullin v. Shimmin, 10 Utah 2d 142, 144-45, 349 P.2d 720, 721 (1960) The Palmers contend that the holdings in the Andreasen line of cases are inconsistent with the election of remedi......
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