Suchan v. Rutherford

• Decision Date: 14 January 1966
• Docket Number: No. 9608,9608
• Citation: 410 P.2d 434,90 Idaho 288
• Parties: Anton SUCHAN and Blanche Suchan, husband and wife, Plaintiffs-Appellants, v. C. H. RUTHERFORD and Beulah Rutherford, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 434

410 P.2d 434

90 Idaho 288

Anton SUCHAN and Blanche Suchan, husband and wife, Plaintiffs-Appellants, v. C. H. RUTHERFORD and Beulah Rutherford, husband and wife, Defendants-Respondents.

No. 9608.

Supreme Court of Idaho.

Jan. 14, 1966.

Rehearing Denied Feb. 7, 1966.

Rayborn, Rayborn & Rayborn, Twin Falls, for appellants.

Hepworth & Nungester, Buhl, for respondents.

TAYLOR, Justice.

In August, 1964, one George Baxter, a real estate agent, interested plaintiffs (appellants) in the purchase of 80 acres of farm land owned by defendants (respondents). August 25, 1964, plaintiffs, with Baxter, drove through the west 40 acres on an inspection tour of the property. Plaintiff Suchan testified that on this occasion he asked Baxter, 'How much rock is there?' and that Baxter replied, 'There is no rock. That's one of the best 40's in the country.' He also testified that he did not make inquiry as to the existence of rock upon the east 40; that he saw irrigation ditches, covered with weeds, which crossed the farm at approximately the dividing line between the two 40 acre tracts, but he did not know whose ditches they were, and made no inquiry as to the ownership of the easements therefor, but assumed they were the Rutherfords' ditches. He further testified that they (plaintiffs and Baxter) got out of the car and looked around. The plaintiffs then inspected the tenant house on the farm, including the basement which was dug into the earth, leaving unfinished some wall areas exposing the formation consisting of 18 inches of soil, below which lay gravel and rock. Suchan admitted observing this exposure of the soil formation and that Rutherford had said there was some rock north of the house, on the east forty. He also testified he observed a canal or ditch at the east edge of the property; he realized it could not be used for irrigation of that part of the farm because of the slope of the land, and assumed it was used as a drain ditch. Baxter testified he did not make any untruthful representation concerning the farm; that he did not tell plaintiffs there was no rock on it; and that he told them he thought it was a good farm with few rocks. Plaintiffs admit they were advised there were a few rocks on the land, all confined to two small areas.

After the inspection of the premises and on August 25, 1964, plaintiffs and defendants executed a written agreement for the sale by defendants to plaintiffs of the 80 acre farm. The agreed purchase price was $39,000 of which $1,000 'earnest money' was paid upon execution of the agreement. The balance of $38,000 was provided to be paid as followsd

'$10,500.00 thirty days; $2,500.00 on Jan. 2 of each year until paid. Payments paid as follows: then balance on principal. Interest to be 5 1/2% beginning Jan. 1, 1965; Purchaser is allowed to pay one third (1/3) of the balance per year until paid if he prefers. Purchaser has right to enter property to make outside repairs and to do farm work before 11/10/64.'

On August 27th, plaintiffs, having heard through neighbors that there was rock on the farm, informed Baxter they would not take the place. On August 29th they met with Rutherfords and reaffirmed the contract. On September 9th, on hearing further stories of rock on the land, plaintiffs decided to abandon the deal. On September 24th Mr. Suchan inspected the property in the company of one Edward Hejtmanek, a field man for the Twin Falls County Weed Department. He then learned that there are three neighboring farmers who had easements for ditch rights of way across the farm, and that the rock on the property was sufficient to prevent smooth operation of his machinery on the land. On that date plaintiffs gave written notice to the sellers of their rescission of the contract on the grounds of fraudulent representations as to the amount of rock on the property, and nondisclosure of ditch rights of others, across the property.

October 2, 1964, plaintiffs commenced this action for the rescission of the contract and the return of the $1,000 paid thereon, alleging fraudulent representation as to the amount of rock on the premises and the nondisclosure of the ditch rights, held by others, across the land. Defendants by answer denied the allegations of fraud and nondisclosure and by counterclaim sought a decree requiring specific performance of the agreement by plaintiffs, or, in the alternative, if specific performance could not be decreed, that defendants be given a judgment for $8,000 damages for breach of the contract.

November 4, 1964, the cause was tried to the court, sitting without a jury. Findings of fact and conclusions of law were waived by stipulation of the parties and judgment was entered in favor of the defendants and against the plaintiffs for specific performance of the contract, as follows:

'1. That plaintiffs' complaint be dismissed.

'2. That the agreement set forth in the counterclaim and proved in this cause be specifically performed and that the defendants and counterclaimants have and recover from the plaintiffs and counter defendants, the sum of $10,500 and that such sum be paid immediately to the defendants and counterclaimants by the plaintiffs and counter defendants as provided for in the agreement and that the plaintiffs and counter defendants pay the balance of the purchase price at the times provided for under the terms of said agreement.'

Plaintiffs brought this appeal from the judgment and assigned as error the dismissal of their complaint and the entry of judgment against them for specific performance of the contract.

Since findings were waived, we are not advised of the facts upon which the court based its conclusion that the contract had not been induced or procured by means of fraud on the part of defendants. The evidence would support findings that no fraudulent representations were made either by the defendants or their agent Baxter as to the condition of the farm with reference to 'rocks' and also that plaintiffs did not rely upon any representations made in that regard, but that they relied upon their own investigation and inspection of the premises.

As to the ditch right of way easements held by others, it was established that there were three ditches crossing the farm, the rights of way for which belong to neighboring farmers. Three such ditches crossed the farm at approximately the center thereof occupying a strip of land 40 feet wide. Although covered by weeds, these ditches were observed by plaintiffs. Plaintiffs made no inquiry and were not advised by defendants or their agent of the ownership of the ditches or the rights of way therefor. Plaintiffs contend that it was the duty of defendants and their agent to inform them of such ditches and of the burden thereof upon the property, and that their failure to do so was fraudulent. They rely upon Janinda v. Lanning, 87 Idaho 91, 390 P.2d 826 (1964). That case is distinguishable from this. There the contamination of the water supply, for the residential property involved, was not a condition which the prospective purchaser could observe by inspection of the premises. Also, in that case the prospective buyer made inquiry, through the agent of the seller, as to the purity of the water supply. In response to such inquiry the seller failed to reveal to the buyer that the seller had been advised that the water was contaminated.

In this case the ditches were apparent to plaintiffs' casual observation and plaintiffs did observe them. The existence of three ditches located side by side through the center of the farm, occupying a strip of land 40 feet wide, would indicate to an experienced farmer that there were more ditches in that location than would be required for the irrigation of the property traversed by them, and would put such a farmer upon inquiry as to the ownership thereof. It was established that plaintiff Suchan was a farmer and had lived and engaged in farming, as a tenant, in Twin Falls county for 49 years. He had lived one year in the same section in which the Rutherford farm was located. It was also shown that plaintiffs were familiar with the fact that in the irrigated area in Twin Falls county the ownership by one farmer of a ditch right or easement across a neighboring farm, was a common thing. In such circumstances the nondisclosure was not fraudulent.

The issue as to the availability of specific performance is more difficult of solution. The basic, underlying rule is that equity will not intervene where the aggrieved party has a plain, speedy, adequate, and complete remedy at law. However, in the case of contracts involving the sale or lease of land, the courts assume that the aggrieved party does not have an adequate remedy at law and is entitled to specific performance. The reasons assigned by the authorities for the rule applied in land contract cases are not convincing when applied to the facts of the case before us. The following are some of such reasons:

'A specific tract is unique and impossible of duplication by the use of any amount of money.'

and referring to the vendor:

'His damages are usually measured by the contract price less the value of the land retained; but the land is a commodity that has no established market value, and the vendor may not be able to prove what his real harm will be. Even if he can make this proof, the land may not be immediately convertible into money, and he is deprived of the power to make new investments.' 2 Restatement Contracts, § 360, Comments a and c.

'The most important aspect of land, in so far as equity jurisdiction for specific performance is concerned, is that no piece of land has its counterpart anywhere else, and is impossible of duplication by the expenditure of any amount of money.' 49 Am.Jur., Specific Performance, § 92.

'Equity adopts this principle, not because the land is fertile, or rich in minerals, but because it is land, a favorite and favored subject in England and every country of Anglo-Saxon origin. ...