Pitcher v. Lauritzen

• Decision Date: 07 February 1967
• Docket Number: No. 10563,10563
• Citation: 423 P.2d 491,18 Utah 2d 368
• Parties: d 368 Marcell PITCHER, Plaintiff and Respondent, v. C. W. LAURITZEN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 491

423 P.2d 491

18 Utah 2d 368

Marcell PITCHER, Plaintiff and Respondent, v. C. W. LAURITZEN, Defendant and Appellant.

No. 10563.

Supreme Court of Utah.

Feb. 7, 1967.

E. J. Skeen, Salt Lake City, for appellant.

Harris & Harris, Logan, for respondent.

ELLETT, Justice.

Between April 16 and 20, 1962, the plaintiff as seller and the defendant as purchaser signed an earnest money receipt and offer to purchase, containing, among other things, the following language:

The total purchase price of $100,000.00 shall be payable as follows: $100.00 which represents the aforedescribed deposit, receipt of which is hereby acknowledged by you: on delivery of deed or final contract of sale which shall be on or before May 1, 1962, and balance of purchase price to be paid as follows: 30 acres in North Logan as indicated by map valued at $50,000.00, $25,000.00 cash from loan on seller's farm and seller to carry balance on contract or second mortgage at 5% interest. * * * All other taxes and all assessments, mortgages, chattel liens and other liens, encumbrances or charges against the property of any nature shall be paid by the seller except * * * none. (Emphasis added.)

There was no map in existence at the time the parties signed the agreement. At least it was not shown to the plaintiff if any there was. The defendant had given to the real estate salesman with whom plaintiff had his land listed for sale a rough sketch showing where a tract of land containing 189 acres of land lay out of which the 30 acres were to be taken. This sketch was not shown to the plaintiff either.

The plaintiff already had a mortgage of $23,000.00 on his land, and the title to one of the tracts being sold was in escrow and would be his when he paid some $6,000.00 balance due on it.

No transfer of possession was ever made as to either tract of land, and the plaintiff lost his enthusiasm for the deal when he learned that he could not sell the North Logan property for anything near $50,000.00 nor mortgage his own land for more than $12,600.00.

The parties never talked to each other about the deal prior to the signing of the purported agreement, and it was the real estate salesman who secured the signatures of each party. It is quite apparent from reading the record that the plaintiff wanted and needed money and that defendant wanted and needed hay for his dairy operation. Numerous efforts on the part of the real estate salesman to get the parties together proved fruitless.

The real estate salesman was instrumental in causing the defendant to go to the plaintiff's land and get about $3500.00 worth of hay and straw during the late summer and fall of 1962. The plaintiff says it was a sale, while the defendant claims that he took the hay and straw as a matter of right by reason of the earnest money agreement which the parties had signed.

No payment was ever made for the hay or straw, and in March of 1964 plaintiff sued the defendant for the value thereof. The defendant apparently thinking his best defense was a vigorous offense counterclaimed for specific performance of the signed document entitled 'Earnest Money Agreement and Offer to Purchase' above referred to.

A trial was had partly to the court and partly to a jury. The jury found by a special verdict the value of the hay and straw, which defendant admits to be sustained by the evidence. The jury also found that neither party had repudiated the earnest money agreement and offer to purchase. The court found the agreement to be valid and binding at its inception but tht it had been abandoned by the parties.

The finding of the court is not in conflict with the finding of the jury. Repudiation is the refusal to perform a duty or obligation owed to the other party, while abandonment is the giving up of the right to a benefit due from another.

By his finding of abandonment the court disposed of the issues raised by the defendant on his counterclaim for specific performance.

It will be noted that nothing was done by either party prior to May 12, 1962, the date when a final contract was to be entered into, and no final contract was ever entered into by the parties. The trial court found under disputed competent evidence that the parties had mutually abandoned the contract; and when there is competent evidence to support such a finding, we are not permitted to substitute our judgment for that of the trial court even if we should disagree with his finding.

But even if there had been no finding of mutual abandonment, there were ample reasons why specific performance should not have been required of the plaintiff.

Specific performance cannot be required unless all terms of the agreement are clear. The court cannot compel the performance of a contract which the parties did not mutually agree upon. See Bowman v. Rayburn, 115 Colo. 82, 170 P.2d 271.

In speaking of certain terms required for specific performance, the author in 49 Am.Jur., Specific Performance, Section 22, at page 35 uses this language:

The contract must be free from doubt, vagueness, and ambiguity, so as to leave nothing to conjecture or to be supplied by the court. It must be sufficiently certain and definite in its terms to leave no reasonable doubt as to what the parties intended, and no reasonable doubt of the...