Nichols v. Knowles
| Decision Date | 29 July 1964 |
| Docket Number | No. 9338,9338 |
| Citation | 87 Idaho 550,394 P.2d 630 |
| Parties | Margaret J. NICHOLS, in her sole and separate capacity, and as Executrix of the Estate of Walter J. Nichols, Deceased, Plaintiff-Appellant, v. Cecil E. KNOWLES and Peggy M. Knowles, husband and wife, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Everett D. Hofmeister, Jr., Sandpoint, for appellant.
Bandelin & Cogswell, Sandpoint, for respondents.
Appellant by her notice of appeal purported to appeal to this court from the trial court's order denying her motion for new trial and also from the final judgment. Respondent moved to dismiss the appeal from the trial court's order denying the motion for new trial on the ground that appellant's undertaking on appeal applied only to the appeal taken from the judgment, and not to the appeal from the order denying the motion for new trial. Pertinent portions of the undertaking on appeal recite:
'Whereas the plaintiff in the above-entitled action is about to appeal to the Supreme Court of the State of Idaho, from a judgment entered against plaintiff in said action, in favor of the defendant in said action on the 18th day of February, 1963: * * *'
This court in Jordan v. Jordan, 75 Idaho 512, 517, 275 P.2d 669, considered the requirements of I.C. §§ 13-202 and 13-203, and their application to an undertaking which referred only to the judgment appealed from and not to orders subsequent to judgment, as in the instant case, and stated:
The case of Jordan v. Jordan, supra, is controlling, and the appellant's appeal from the order denying her motion for new trial is dismissed.
Mrs. Nichols, the plaintiff and appellant, is the widow of Walter J. Nichols, who died April 17, 1961; she instituted this action individually, and as the executrix of her later husband's estate, to terminate a written real estate contract and to quiet title to the property against Mr. and Mrs. Knowles, husband and wife, the defendants and respondents herein.
The contract, dated August 1, 1960, was executed by Mr. and Mrs. Nichols, as the vendors, and signed April 1, 1961, by respondents as purchasers. Under the terms of the contract, respondents were to pay $20,000, purchase price, of which sum $19,000 was for the real property, and $1,000 for personal property. The purchase price was payable $2,000 upon signing of the contract, payment of which was acknowledged by appellant and her husband, and $6,000 on or before July 1, 1961, and the remaining balance in annual installments.
On April 1, 1961, respondents paid an additional $4,000 on the payment due July 1, and took possession of the premises. They did not pay the remaining $2,000 due on the July 1st payment. The record disclosed some discussion regarding a 30 day extension of time for payment of this $2,000. However, on September 2, 1961, appellant caused Notice of Default and Election to Re-enter to be served on respondents, and appellant instituted this action seeking possession of the premises and seeking to quiet title, and to retain as liquidated damages the amount paid by respondents upon the contract. Respondents filed a counter-claim seeking a return of the $6,000 paid, less $1,000 for the reasonable use and occupancy of the premises. Respondents relinquished possession of the property in June, 1962.
Judgment was entered for appellant quieting title in the real and personal property in the appellant; judgment was also entered for respondents on their counterclaim for $3,350, which sum was decreed a lien upon the premises. This appeal was taken from that judgment.
Appellant's first four assignments of error are directed to specific findings of the trial court. Suffice it to say that an examination of the record reflects that these findings are fully supported by substantial and competent evidence, and hence will not be disturbed by this court. Ryan v. Day, 74 Idaho 159, 258 P.2d 1146; Crouch v. Bischoff, 76 Idaho 216, 280 P.2d 419; Melton v. Amar, 86 Idaho 262, 385 P.2d 406.
The contract, among other things, provided:
Appellant asserts that the trial court erred in its finding that such provision '* * * provides not for a forfeiture and actual damages, but a penalty insofar as it bears no reasonable relation to the damage suffered by the plaintiffs by reason of the breach of the defendants, and said retention of the $6,000 heretofore paid by the defendants to the plaintiffs is unconscionable and exorbitant and is a penalty and void and unenforceable.'
The trial court further found that respondents had made a down payment of $2,000, and that they made a further payment on April 1, 1961 of $4,000, for a total of $6,000, and also found on respondent's counter-claim that respondents were entitled to recover from the appellant the $6,000, less the following items fixed as appellant's damages:
"1) Reasonable rental value of
said premises for the tenure
by the defendants at the rate
of $1,000.00 per year for a
total of ......................... $1,250.00
2) Repairs, cleaning and renovation
by the plaintiffs after
the defendants removed
themselves from the property
in the amount of ................... 400.00
3) Real Estate commission paid
by the plaintiff to Nona
Sommerfeld for procuring the
sale of said property, the
amount of ......................... 1,000.00...To continue reading
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...by the purchasers. comparable to those presented by appellant's assignments of error have been considered, namely: Nichols v. Knowles, 87 Idaho 550, 394 P.2d 630; Anderson v. Michel, 88 Idaho 228, 398 P.2d 228; Walker v. Nunnenkamp, 88 Idaho 222, 398 P.2d 444; Valdez v. Christensen, 89 Idah......
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