Paloni v. Beebe
Citation | 110 P.2d 563,100 Utah 115 |
Decision Date | 26 February 1941 |
Docket Number | 6265 |
Court | Utah Supreme Court |
Parties | PALONI v. BEEBE et al |
Appeal from District Court, Seventh Judicial District, Carbon County; George Christensen, Judge.
Action by Tony Paloni, sometimes known as Tony Poloni, against L. H Beebe and Arla Beebe, husband and wife, to recover damages for alleged breach of warranty against liens and encumbrances contained in a deed. From a judgment of no cause of action plaintiff appeals.
Reversed and remanded, with instructions.
Raymond R. Brady and Joseph R. Haas, both of Salt Lake City, for appellant.
O. K Clay, of Tooele, for respondents.
Appellant instituted this action in the district court to recover damages for an alleged breach of warranty against liens and encumbrances contained in a deed to certain real property conveyed to him by respondents. From a judgment of no cause of action this appeal was taken.
The evidence reveals that in March, 1929, L. H. Beebe and wife entered into an agreement with Tony Paloni whereby the former agreed to convey certain real estate to the latter for the sum of $ 1,000
"payable $ 500.00 cash upon the signing of this contract and the balance of $ 500.00 one year from date hereof with interest on the said deferred payment at the rate of 8 per cent per annum from date hereof until paid." It was further agreed that as "soon as the said purchase money and taxes for the year of 1929 and subsequent taxes shall be paid, first parties [the Beebes ] agree to convey to second party [Tony Paloni ], his heirs or assigns by good and sufficient warranty deed, the fee simple title to said premises, free of any and all encumbrances, except taxes levied in 1929 or thereafter." (Italics added.)
At the time the agreement was entered into there were outstanding against the property certain improvement taxes in the sum of $ 239.20, plus interest, the same having been levied in 1927 by the City of Helper, payable in 10 equal annual installments. And at the time of executing the contract of sale the Beebes paid to the treasurer of Helper City the sum of $ 52.62, the amount then due on said assessment together with interest to the first of January, 1930. Thereafter no more was paid on said special improvement tax until 1938 when Paloni paid the sum of $ 267.89 to extinguish the lien.
It was to recover this sum that suit was brought, appellant contending that the contract of sale and the deed contained warranties against "any and all encumbrances, except taxes levied in 1929 or thereafter." At the trial respondents sought to show by parol evidence that at the time of making the agreement appellant orally agreed to pay the special improvement tax installments falling due after the year 1929. Appellant objected to the introduction of any such evidence on the ground that it tended to alter the terms of the written contract. Respondents contended, however, that appellant's promise to pay taxes formed a part of the consideration for the sale of the property and that parol evidence is admissible to show the true consideration for the sale of real estate, even though such is inconsistent with the consideration set out in the deed or contract of sale.
Whether or not parol evidence is admissible to show a different consideration than the one set out in a written contract depends generally on whether the statement is a mere recital or forms a part of the contractual acts of the parties. As stated by Wigmore in his work on Evidence, 3d Ed., vol. IX, sec. 2433:
In the instant case the statement of consideration in the contract of sale was not a mere recital but constituted an essential element of the contract between respondents and appellant. It was specifically agreed that appellant was to pay $ 1,000 for the property, and the time and method of paying the same...
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Miller v. Archer, 701
...payment. It is inserted for convenience, usually because the parties do not want to reveal the real consideration. Paloni v. Beebe, 100 Utah 115, 118, 110 P.2d 563, 565 (1941) (quoting 9 Wigmore, Evidence § 2433 (3d ed. 1981)). Therefore, the parol evidence rule does not prevent a party fro......
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Producers Livestock Loan Co. v. IDAHO LIVESTOCK AUC.
...admission of parol evidence is stated in Farr v. Wasatch Chemical Co., 105 Utah 272, 143 P.2d 281, 283, 151 A.L.R. 275 and Paloni v. Beebe, 100 Utah 115, 110 P.2d 563. The Farr case states it to be as stated in Section 2430 of Wigmore on Evidence "`The inquiry is whether the writing was int......
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Pacific Bond & Mortgage Co. v. Rohn
... ... have been had there been no delinquency as to the 1931 taxes ... [121 P.2d 638] ... [101 ... Utah 342] The case of Paloni v. Beebe, 100 ... Utah 115, 110 P.2d 563, has no application here. In that case ... we held that parol evidence was not admissible to show an ... ...