Tapper Chevrolet Co. v. Hansen
| Decision Date | 07 June 1973 |
| Docket Number | No. 11146,11146 |
| Citation | 95 Idaho 436,510 P.2d 1091 |
| Parties | TAPPER CHEVROLET COMPANY, an Idaho corporation, and Lyle G. Tapper, Jr., Plaintiffs-Respondents, v. Khalil V. HANSEN et al., Defendants-Appellants. |
| Court | Idaho Supreme Court |
Terrell, Green, Service & Gasser, James B. Green, Pocatello, for defendants-appellants.
LaMont Jones, Jones, Pomeroy & Jones, Pocatello, for plaintiffs-respondents.
This is an action for specific performance of a real estate sales contract; the defendants-appellants appeal from the district court's entry of summary judgment in favor of the plaintiffs-respondents.
The contract in question was entered into on April 21, 1964, by appellants Khalil V. Hansen, Faye W. Hansen, and Hansen Chevrolet Company-as sellers-and respondent Tapper Chevrolet Company-as buyer. Among its provisions were the following paragraphs.
'(NO REPRESENTATIONS) It is understood and agreed that all understandings and agreements heretofore had between the parties hereto are merged in this Agreement, and that the same is entered into after full investigation, neither party relying upon any statement or representation not embodied in this Agreement, made by the other.
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'(MODIFICATION OR TERMINATION; BINDING EFFECT) It is hereby understood and agreed that this Agreement may not be changed or terminated orally * * *.
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This agreement was prepared by the sellers' attorney, at their request, from information furnished by them. In an affidavit filed in support of summary judgment, the attorney who drew up this decument stated that 'there was no overreaching, inequitable or unconscionable conduct on the part of any of the parties to said agreement and at the time of execution it embodied the mutual understanding of the parties and their attorneys.'
After the execution of the contract of sale, Tapper Chevrolet's president Lyle G. Tapper, Jr. (who signed for the buyer) actively supported the selection of the Washington Street site for the proposed overpass; and Khalil V. Hansen (one of the sellers) worked as diligently to cause the overpass to be located elsewhere.
When this action was commenced by the buyer on August 11, 1971, an overpass had been constructed at the Washington Street location, and the balance outstanding under the contract had been reduced to $40,000, the amount of the reduction provided for in the event of the construction of said overpass. Asserting fulfillment of the contractual condition to the $40,000 reduction provided for, the buyer demanded delivery of the deed to the property.
In their answer, the sellers raised the defense of 'unclean hands'-relying upon the buyer's efforts to procure selection of the Washington Street overpass location-and the defense of mutual mistake of fact-alleging that although the parties had contemplated that the overpass would result in a depreciation of the property's value, in actuality it had resulted in its appreciation since the time of sale. The buyer moved for summary judgment, and in a supporting affidavit Lyle G. Tapper stated, and offered exhibits to show, that when the sales agreement was entered into on April 21, 1964, the construction of the overpass had already been approved by both the state and the city. In an affidavit in opposition to summary judgment, Khalil V. Hansen stated (1) that during oral discussions concerning the sale of the property, the parties orally agreed that they would mutually oppose the construction of such overpass; (2) that at the time of the agreement, the Washington Street overpass was 'in the planning stage only'; (3) that in agreeing to the 'condemnation' provision, the parties did not contemplate that the buyer would work to procure the construction of the overpass at that location but rather that both parties would cooperate in seeking 'to have the location moved' (emphasis added); (4) that (upon advice and belief) the overpass as finally constructed differed substantially in design from that proposed prior to the execution of the contract; (5) that (upon information and belief) the construction of the overpass did not result in depreciation of the property by the sum of $40,000; and (6) that specific performance, if granted, would cause him to suffer 'an oppressive and harsh loss in excess of and beyond the contemplation of the parties at the time the agreement was entered into.' In its memorandum decision granting the relief requested by the buyer, the trial court concluded, inter alia:
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'(T)here is nothing in the contract requiring a standard of conduct by either party...
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...v. Clark Equipment Co., 112 Idaho 85, 87, 730 P.2d 1005, 1007 (1986) (conclusory affidavit disregarded); Tapper Chevrolet Co. v. Hansen, 95 Idaho 436, 439, 510 P.2d 1091, 1094 (1973) (affidavits in support or opposition to summary judgment must set forth facts admissible into evidence); Ope......
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...is one means of proving that the writing was intended as a complete statement of the parties' agreement. Tapper Chevrolet Co. v. Hansen, 95 Idaho 436, 439, 510 P.2d 1091, 1094 (1973). The merger clauses here are similar to the merger clause in Tapper Chevrolet. 4 They unequivocally state th......
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...provided in the Memorandum in Support of Defendants' Motion for Summary Judgment, (R., Vol. 3, p. 386), wherein Tapper Chevrolet Co. v. Hansen, 95 Idaho 436, 510 P.2d 1091 (1973), was relied upon. In that case the court denied the admission of the parties' oral representations prior to the ......
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