Roberts v. Tuttle

• Decision Date: 10 December 1909
• Citation: 105 P. 916,36 Utah 614
• Court: Utah Supreme Court
• Parties: ROBERTS et al. v. TUTTLE et al.

105 P. 916

36 Utah 614

ROBERTS et al. v. TUTTLE et al.

Supreme Court of Utah

December 10, 1909

Appeal from District Court, Third District; T. D. Lewis, Judge.

Action for breach of contract by Joseph H. Roberts and Hattie Roberts against Walter G. Tuttle, Sereno B. Tuttle, and Marcellus B. Woolley, doing business as Tuttle Bros. From a judgment for plaintiffs for a part only of their claim, they appeal. Reversed.

The plaintiffs brought this action against the defendants to recover damages resulting from an alleged breach of an implied warranty of their authority as agents.

It is alleged in the complaint: That one Isabel L. Denny, a resident of Beaver, Beaver county, Utah, was, and still is the owner of a certain house and lot on Sixth avenue, in Salt Lake City, Utah. That defendants were copartners doing business under the firm name and style of Tuttle Bros., as real estate agents and brokers. That they pretended to act as the duly authorized agents of the owner, and, without disclosing their principal, falsely represented to plaintiffs that they had and possessed full authority to enter into a contract for the sale of the property, and to put plaintiffs into immediate possession thereof, for the sum of $2,650 payments to be made as follows: $300 cash down, and the balance in installments of $20 per month with 7 per cent interest; that plaintiffs agreed to said terms, and on February 13, 1905, paid defendants $300, and thereupon the plaintiffs and the defendants made, executed, and delivered to each other a memorandum in writing in words and figures as follows:

"Received of J. H. Roberts and Hattie Roberts $300.00, the same being a forfeit payment as evidence of good faith on the part of said J. H. Roberts and Hattie Roberts, made to secure and apply on the purchase of No. 617 6th St., Salt Lake City, and 3x10 rods, providing Tuttle Bros. furnish good title to said property, for not exceeding $2,650.00, twenty-six hundred and fifty dollars, on the following terms of payment, to wit: $300.00 cash in hand paid and the balance in monthly installments of $20.00 per month, with seven per cent. interest.

"The title to said property to be a marketable one, and papers to be made in name of J. H. and Hattie Roberts and ready at office of Tuttle Bros. not later than Feb. 30, 1905, or this payment to be refunded.

"[Signed] Tuttle Bros.,

"Per C. E. Monro.

"I hereby agree to carry out and fulfill the terms and agreements herein specified, subject to conditions named.

"[Signed] J.H. Roberts.

"Hattie Roberts."

(2) That defendants placed plaintiffs in possession of said premises, and that each month thereafter, to and including July 1906, plaintiffs paid to defendants monthly installments of $20 each, as provided in said contract, on or about the 1st day of each month, to the amount of $340 and all of said payments were accepted by defendants as payments upon the purchase price and in compliance with the terms of the contract, and that all of said sums (aggregating $640) the defendants still retain.

(3) That upon taking possession, plaintiffs made certain necessary permanent improvements and repairs upon said premises to the value of $250, and the necessity of mak-said improvements and repairs was known to defendants.

(4) That in May, 1905, plaintiffs, still falsely claiming to be the duly authorized agents of the said Isabel L. Denny, falsely represented to plaintiffs that, if they would borrow the balance of the purchase price and tender the same to the defendants as agents, Mrs. Denny would accept the same, and be obligated to convey the property to plaintiffs; that they borrowed the money at an expense of $35, and tendered the balance of the purchase price to defendants, and that defendants, well knowing that they were without authority to act for Mrs. Denny, refused to accept the money so tendered.

(5) That in May, 1905, Mrs. Denny demanded possession of the premises, and on July 11, 1905, commenced an action in ejectment and for damages against plaintiffs.

(6) That plaintiffs gave defendants notice of the action, and demanded that they defend the same, which they refused to do, but represented that plaintiffs had a valid contract of sale, and that defendants had ample and valid authority to make the same, and advised plaintiffs to hold possession of the property and defend the action; that plaintiffs did hold possession of the premises and employed attorneys to defend the action, and incurred costs and expenses in defending the same to the amount of $178; that a judgment was rendered in favor of Mrs. Denny and against these plaintiffs for the possession of the premises, and for $424.90 damages, and that in accordance with the judgment plaintiffs vacated the property.

(7) That plaintiffs attempted, under chapter 7, Rev. St. 1898, to recover the costs of the improvements which they had made upon the premises, but failed.

(8) That plaintiffs have lost and been deprived of the benefits of their contract of sale, to their damage in the further sum of $1,350.

In the answer it was admitted that defendants Walter G. Tuttle and Sereno B. Tuttle were, at all times mentioned in the complaint, copartners doing business as Tuttle Bros., but it is denied that Marcellus S. Woolley was or is one of the members of the firm of Tuttle Bros. Defendants also admit in their answer "that plaintiffs entered into said agreement in good faith, and paid the said forfeit sum of $300, and further admit that thereafter, until and including the month of July, 1906, the plaintiffs paid defendants $20 on or about the 1st of every month until the same aggregated the sum of $340." It is further alleged in the answer that at the time plaintiffs offered to purchase the property "they well knew that these defendants were not the owners of said property, and were not possessed with a marketable title thereto, and were not in a position to furnish such title thereto, and were not in a position to furnish such title to the plaintiffs unless the owner of said property should accept plaintiffs’ said offer, and be willing and able to convey such title to plaintiffs; that with such knowledge, *** and knowing that their offer might not be accepted by said owner, or that plaintiff and said owner might not agree upon the terms of sale, said contract, which is set out in said complaint, *** was entered into; *** that at the time of executing the said contract it was understood and agreed between the parties that said contract or receipt was simply a preliminary matter, and that when the terms of the sale, in case the said owner and said plaintiffs should agree, should be determined, they were to be embodied in a written contract between said Denny and the plaintiffs, but that said contract set out in said complaint did not, and was not, by the parties intended to bind these defendants to furnish to plaintiffs a marketable title to said property; that defendants communicated said offer to said owner, and she agreed with these defendants to accept the same, and authorized them to communicate such acceptance to plaintiffs, which acceptance was afterwards by these defendants communicated to plaintiffs; that thereafter, and before a written contract for the sale of said property was executed by said Denny and said Roberts, a dispute arose between them as to the manner in which the interest upon the deferred payments of said purchase price should be paid, the plaintiffs, in violation of the plain terms of said contract, insisting that the $20 per month mentioned in said contract should be inclusive of interest, and the said Denny insisting that the payments should be $20 per month upon the purchase price, and that in addition thereto these plaintiffs should pay monthly the interest due upon the deferred payments; that on March 1st, and before said dispute arose, and before the first installment was due under said contract, the plaintiffs paid to these defendants $20 as the first installment thereof, but that before the second installment was due these defendants notified the plaintiffs that said Denny refused to sell said property, or execute a contract for the sale of the same, unless plaintiffs would pay $20 per month upon the balance of the purchase price, and also the interest monthly, with the said $20 per month, which plaintiffs refused to do, and by reason thereof these defendants were unable to procure from said Denny a contract for the sale of said property, or a marketable title thereto, to be conveyed to the plaintiffs, and thereupon said contract became and was terminated and at an end, and these defendants thereupon offered to repay to the plaintiffs the said sum of $300 forfeit money, together with the $20 which had been by the plaintiffs paid to the defendants; *** that plaintiffs refused to accept, and insisted upon defendants keeping, said sum of $300, together with said first installment of $20, and from time to time, until the monthly payments aggregated the amount of $340, plaintiffs insisted upon paying the sum of $20 per month to these defendants, requesting defendants to accept the same, all at plaintiffs’ risk." It is further alleged that defendants have not repaid the money because they were served with a writ of garnishment in the action brought by Mrs. Denny and against plaintiffs, referred to in plaintiffs’ complaint. Defendants deny that plaintiffs have been deprived of the benefits of their contract to their damage in the sum of $1,350, or in any other sum, or at all.

In support of the allegations of their complaint the plaintiffs introduced oral and certain documentary evidence. Joseph H Roberts, one of the plaintiffs, testified that in the early part of February, 1905, he entered into negotiations with defendants...