Robert Langston, Ltd. v. McQuarrie, 860036-CA

• Decision Date: 25 August 1987
• Docket Number: No. 860036-CA,860036-CA
• Citation: 741 P.2d 554
• Parties: ROBERT LANGSTON, LTD., Plaintiff and Respondent, v. L. Gurr McQUARRIE, Defendant and Appellant, Robert Langston, individually and as general partner of Robert Langston, Ltd., et al., Defendants and Respondents. L. Gurr McQUARRIE, Third-Party Plaintiff, v. SECURITY TITLE CO. OF SOUTHERN UTAH, Third-Party Defendant.
• Court: Utah Court of Appeals

Page 554

741 P.2d 554

ROBERT LANGSTON, LTD., Plaintiff and Respondent, v. L. Gurr McQUARRIE, Defendant and Appellant, Robert Langston, individually and as general partner of

Robert Langston, Ltd., et al., Defendants and Respondents.

L. Gurr McQUARRIE, Third-Party Plaintiff, v. SECURITY TITLE CO. OF SOUTHERN UTAH, Third-Party Defendant.

No. 860036-CA.

Court of Appeals of Utah.

Aug. 25, 1987.

Rehearing Denied Oct. 6, 1987.

James A. McIntyre, Kerry P. Eagan, McIntyre, Dennis & Egan, P.C., Salt Lake City, for McQuarrie.

Kevin J. Sutterfield, Salt Lake City, D. David Lambert, Howard, Lewis & Peterson, Provo, for United Farm.

David Nuffer, Snow & Nuffer, St. George, for Langston.

Bryce Roe, Fabian & Clendinen, Salt Lake City, for Security Title Co.

Timothy B. Anderson, Jones, Waldo, Holbrook & McDonough, St. George, for John Rex.

Before ORME, GREENWOOD and BILLINGS, JJ.

ORME, Judge:

Appellant McQuarrie seeks reversal of the trial court's decision granting rescission of a contract for the sale of land leases, grazing permits, and cattle from respondent Langston to McQuarrie. McQuarrie also seeks reformation of the contract and specific performance of the reformed contract. United Farm Agency cross appeals, seeking a commission based on a listing agreement it had with Langston. We affirm Langston's judgment against McQuarrie with one modification and reverse the judgment of no cause of action entered against United Farm Agency.

FACTUAL BACKGROUND

On February 24, 1980, McQuarrie and Langston entered into a written contract for the sale of some or all of Langston's ranching operation known as the Last Chance Allotment. The "Deposit Receipt and Agreement of Sale" listed the property to be sold as certain Bureau of Land Management grazing permits, range worthy cattle at the prices per head stated in the agreement, and other items of personal property. The purchase price of $620,000--$380,000 for the BLM permits and an estimated $240,000 for the cattle--was to be paid as follows: $10,000 as earnest money; $145,000 down payment due on April 15, 1980; and equal annual installment payments of $59,724 payable April 15, 1981 and yearly thereafter until the entire balance was paid in full.

At the time the agreement was signed, the parties agreed that a cattle count would be conducted to determine the exact number of cattle on the ranch, which would enable a final price to be calculated for the cattle. Neither the fact of the cattle count nor the timing or mechanics for the procedure were included in the contract. Because of the inaccessibility of the Last Chance Allotment, the parties were unable to perform the cattle count until late May and early June of 1980.

Many of the documents necessary to complete the sale, including quit claim deeds and trust deeds for the permits, were executed by the parties prior to the cattle count. All transactions necessary to finalize the sale were, apparently, complete upon the execution of these documents, with the important exceptions of the final cattle count, execution of a bill of sale for the cattle, and transfer of possession of the real and personal property subject to the contract.

The cattle count began on May 23, 1980 and continued until June 9, 1980. McQuarrie's son Martin was present through most of the counting but left the ranch before In June 1980, McQuarrie visited the ranch and acknowledged that he did not have the $145,000 down payment then past due, but offered to pay $30,000. Langston did not accept the lesser amount.

the count was completed. Although written tally sheets were kept to reflect the total number of cattle, ¹ some of the green paint that was used to mark the cattle as they were counted rubbed off, and some of the cattle were counted twice. All parties stipulated at trial that the total number of cattle reflected on the tally sheets equalled 246, despite entries for more than 300, because of the double counting. The parties disagreed as to whether the tally sheets in evidence were all the tally sheets taken.

At about this time, McQuarrie began to suspect that Langston had continued removing cattle from the ranch after the earnest money agreement was executed. McQuarrie then repudiated the arrangement, sending the following note to Langston, through his broker:

Please be informed that we are pulling out of the deal. Mr. Langston needs to tend his property. Appropriate refund of earnest money would be your only requirement.

Langston did not return the earnest money. Instead, he filed a lawsuit seeking judicial foreclosure of the trust deeds. McQuarrie counterclaimed for damages because of Langston's failure to perform under the agreement and Langston's misrepresentations concerning the actual number and value of the cattle, the condition of the personal property, and the number of valid grazing leases held by Langston. McQuarrie also counterclaimed for specific performance of the sale agreement and requested the court to adjust the purchase price to reflect the value of property Langston was unable to deliver in accordance with the agreement. Langston later amended his complaint to state a claim for rescission. ²

Three and one-half years after the action was commenced, trial was held. After hearing the evidence, the trial court declared the contract rescinded and, to return the parties to the status quo, declared the documents executed pursuant thereto void. (It did not, however, order restoration of McQuarrie's earnest money and certain grazing fees he had paid.) The court based its rescission of the contract primarily on a theory of mutual mistake. The trial court found that 285 cattle at prices shown for each type of cattle on the sale agreement were mutually assumed and that they were agreed to have a total approximate purchase price of $240,000. ³ "There was no anticipation by the parties that less than 285 cattle would be present or counted, nor was there any anticipation that the money owing for cattle would vary, except in a slight degree, from $240,000." According to the court's findings, the parties were mutually mistaken as to the price and terms set by the contract.

On appeal, McQuarrie argues that the court erred in granting rescission, and that the documents should be reformed to reflect the actual number and value of the

cattle and then enforced. United Farm Agency cross appeals, seeking a commission based on a listing agreement between its agent John Rex and Langston.

MUTUAL MISTAKE

A mutual mistake occurs when both parties, at the time of contracting, share a misconception about a basic assumption or vital fact upon which they based their bargain. Bailey v. Ewing, 105 Idaho 636, 671 P.2d 1099, 1102 (Idaho App.1983). The trial court found that the parties were mistaken as to the number of the cattle actually on the Last Chance Allotment (only 246 were shown by the exhibits) and also as to the price and terms. The crux of the mistake is this: If there had been 285 cattle as Langston and McQuarrie both assumed, they could not have totalled $240,000 at the listed prices unless all but a handful of the cattle were bulls. ⁴ There was also some confusion about what permits were being sold. The contract listed the BLM permits as being located in Garfield County. Unknown to the parties at the time of execution of the agreement, the state grazing lease in Garfield County had been cancelled in 1976. Langston had obtained, and was using in connection with the operation of the ranch, other leases which were not described in the sale agreement. The quit claim deeds Langston gave McQuarrie were for grazing leases in Kane and Garfield counties. ⁵

Mutual mistake of fact makes a contract voidable, see Tanner v. District Judges, 649 P.2d 5, 6 (Utah 1982), and is a basis for equitable rescission. Tarrant v. Monson, 96 Nev. 844, 619 P.2d 1210, 1211 (Nev.1980). We find the trial court was acting within its discretion to rescind the sale agreement in view of its adequately supported findings concerning mutual mistake. ⁶ See 12A C.J.S. Cancellation of Instruments § 7 (1980) (allowance or denial of rescission remedy rests in the sound discretion of the trial court). See also Horton v. Horton, 695 P.2d 102, 105 (Utah 1984).

However, once the trial court rescinded the contract, it was, as it recognized, obligated to return the parties to their pre-contract position, if possible. Busch v. Nervik, 38 Wash.App. 541, 687 P.2d 872, 876 (1984). See Perry v. Woodall, 20 Utah 2d 399, 401, 438 P.2d 813, 815 (1968) (one electing to rescind a contract must tender back to other contracting party whatever property of value he has received); Horton v. Horton, 695 P.2d 102, 107 (Utah 1984) ("The purpose of an equity action is to restore the parties to the status quo to the extent possible."). Accordingly, to complete the restitution which properly accompanies rescission, Langston is required to reimburse McQuarrie for the $10,000 earnest money fee and the grazing fees McQuarrie paid.

BROKER COMMISSION

Under the terms of the exclusive listing agreement, Rex and United Farm Agency were entitled to a commission when: 1) a purchaser was...