Tyng v. Constant-Loraine Investment Co.

• Decision Date: 09 March 1910
• Docket Number: 2058
• Citation: 108 P. 1109,37 Utah 304
• Court: Utah Supreme Court
• Parties: TYNG v. CONSTANT-LORAINE INVESTMENT COMPANY

108 P. 1109

37 Utah 304

TYNG v. CONSTANT-LORAINE INVESTMENT COMPANY

No. 2058

Supreme Court of Utah

March 9, 1910

Appeal from District Court, Third District; Hon. Geo. T. Armstrong Judge.

Action by Charles Tyng against Constant-Loraine Investment Company.

Judgment for plaintiff. Defendant appeals.

REVERSED AND NEW TRIAL ORDERED.

Howat &amp Macmillan for appellant.

Henderson Pierce, Critchlow & Barrette for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

R. A. Rowan, of Los Angeles, Cal., the president of the Constant-Loraine Investment Company, a corporation, also of that city, in December, 1905, conveyed to it by warranty deed a parcel of ground fifty-three and one-half feet by one hundred and sixty-five feet situate on the west side of State Street, in Salt Lake City, Utah, and in the same deed quitclaimed to it a strip one and one-half feet by one hundred and sixty-five feet adjoining the fifty-three and one-half feet on the south. The title so conveyed to the company was all the title held by Rowan. The strip quitclaimed was occupied by a wall of a building on land of another adjoining the strip on the south. Neither Rowan nor the company ever had possession of the strip occupied by the wall. The deed from Rowan to the company was made subject to a mortgage of $ 20,000 covering both strips (55 by 165 feet), and was recorded January 4, 1906. The plaintiff, residing at Salt Lake City, made known to the Equity Investment Company of Salt Lake City, and to Thomas E. Rowan, a real estate agent also of that city, a desire to purchase property on the west side of State Street, and in the vicinity of the land in question. Thomas E. Rowan was not related to R. A. Rowan. On the 4th day of September, 1907, Thomas E. Rowan, at Salt Like City, wired R. A. Rowan, at Los Angeles: "Advise cash price west side state taxes prorated whether leased." R. A. Rowan answered the next day: "Will accept fifty thousand dollars. Property now mortgaged for twenty thousand at five per cent. Leases very short. See Kelsey and Gillespie for exact information." On that day Thomas E. Rowan again wired R. A. Rowan: "Responsible party offers one thousand for thirty days' option recommend." R. A. Rowan answered by wire: "Los Angeles, Calif. Sept. 6, 7, 1907. Thos. E. Rowan, Salt Lake, Utah. Will accept one thousand for thirty days' option for property west side State Street. Price fifty thousand subject to twenty thousand mortgage. Balance thirty thousand to be paid in cash on or before thirty days from date. Taxes to be prorated. One thousand to be deposited to my credit immediately with National Bank of Republic, they to notify me by wire. R. A. Rowan."

Upon receipt of this, plaintiff paid to the Equity Investment Company $ 1000, who deposited it with the National Bank of the Republic to the credit of R. A. Rowan. The bank thereupon gave the Equity Investment Company the following receipt and writing: "Salt Lake City, September 9, 1907. Received of the Equity Investment Company one thousand ($ 1000) dollars as a deposit on account of the purchase price of the following described real property in the county of Salt Lake, State of Utah" describing the parcel of ground 55 feet by 165 feet," which property the Equity Investment Company agrees to buy for the sum of fifty thousand ($ 50,000) dollars, payable as follows: Thirty thousand ($ 30,000) dollars on or before thirty days from the date of this receipt. The above-mentioned deposit of one thousand ($ 1000) dollars to be applied as a part of said payment. The balance of twenty thousand ($ 20,000) dollars to be covered by a mortgage for that amount now on the property, which mortgage the Equity Investment Company agrees to assume and pay. The property to be deeded by a warranty deed free of all incumbrances except aforesaid mortgage of twenty thousand ($ 20,000) dollars and the general taxes for the year 1907. The Equity Investment Company agrees to pay their proportion of the said taxes from the date possession is delivered to them. This deposit is made with the National Bank of the Republic, and accepted by them under authority of the following telegram from R. A. Rowan: 'Los Angeles, Calif., Sept. 6, 7, 1907. Thos. E. Rowan, Salt Lake, Utah: Will accept one thousand for thirty days' option for property west side State Street. Price fifty thousand, subject to twenty thousand mortgage. Balance thirty thousand to be paid in cash on or before thirty days from date. Taxes to be prorated. One thousand to be deposited to my credit immediately with the National Bank of Republic, they to notify me by wire. R. A. Rowan.' If the Equity Investment Company does not complete the purchase of said property within the time and manner above specified, then this deposit shall be forfeited to the seller as liquidated damages. National Bank of the Republic, by Frank Knox, Pr."

At the same time and place the Equity Investment Company assigned and delivered the writing to the plaintiff. The assignment was indorsed on the back of the writing. On the 20th day of September, 1907, R. A. Rowan, as president, and P. D. Rowan, as secretary, of the Constant-Loraine Investment Company, at Los Angeles, executed and mailed to the bank at Salt Lake City a deed to the Equity Investment Company, conveying and warranting to it 53 1/2 feet by 165 feet, and in the same instrument quitclaimed to it 1 1/2 feet by 165 feet, the strip occupied by the wall, being all the title held by it to the property, and being the same and all the title theretofore conveyed to it by R. A. Rowan. On the 9th day of October, the last day of the option, the plaintiff tendered the bank $ 29,000, and demanded a deed. The bank tendered him the deed, which was executed and forwarded by R. A. Rowan. The plaintiff refused to accept it on the ground that it contained a warranty for only 53 1/2 feet, and demanded a warranty deed for the entire 55 feet, and as stipulated by the contract executed by the bank. He refused to pay any part of the $ 29,000 until such a deed was executed and tendered by the defendant. Such a deed was not tendered.

In a letter from R. A. Rowan to Thomas E. Rowan, the former, on the 9th day of October, wrote: "I wired you yesterday as follows: 'No one ever had authority to sell the property in question for less than fifty thousand, and that is a special price, having always held it before at $ 58,500. Can only sell the property as I bought it and giving the same deed I received. Mr. Holloran, the former owner, is acquainted with the particulars of this property, and am sure he will assist you in any way possible.' Of course, you understand that I have never given you the exact frontage of the State Street lot, but have always said it was about fifty-five feet, and I believe that is the exact dimension, although we only have a warranty deed for 53 1/2 feet, and a quitclaim deed for the balance which I am in turn giving to your people. I can only sell what I have, and I will not reduce the price from $ 50,000 as I know this is less than it is worth. I hope that you will be able to put the sale through without any trouble."

The contention of the plaintiff is stated in a letter written by his counsel on the 9th day of ...