Zaring v. Lavatta

• Decision Date: 28 December 1922
• Citation: 36 Idaho 459,211 P. 557
• Parties: ROY ZARING, Appellant, v. PHILLIP LAVATTA, MAY B. LAVATTA and L. L. EVANS, Respondents
• Court: Idaho Supreme Court

211 P. 557

36 Idaho 459

ROY ZARING, Appellant, v. PHILLIP LAVATTA, MAY B. LAVATTA and L. L. EVANS, Respondents

Supreme Court of Idaho

December 28, 1922

REAL PROPERTY - CONTRACTS - SALES - PAYMENT OF PURCHASE PRICE CONTINGENT UPON MAKING OF LOAN BY PURCHASER-MUTUALITY, LACK OF-SPECIFIC PERFORMANCE-SUBSEQUENT OFFER TO PERFORM.

1. Where a contract for the sale of certain realty at a purchase price of $8,500 provides that the purchaser shall obtain a loan to make payment of $5,000 of the purchase price and upon receiving said loan such payment will be made, and that the balance of the purchase price shall be paid in three successive instalments, the contract lacks mutuality.

2. Where in a contract for the sale of real property the initial payment upon the purchase price is made payable upon the happening of an event which may or may not happen, at the pleasure of the payor, the contract lacks mutuality.

3. Mutuality of obligation is an essential element of the right to enforce specific performance in a court of equity.

4. Lack of mutuality in a contract for the sale of real property is not remedied by a subsequent offer by the party not bound to perform the obligation to which he should fairly have bound himself in the contract.

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Robert M. Terrell, Judge.

Action for specific performance of contract for sale of real property. Judgment for defendants. Affirmed.

Order affirmed. Costs awarded to respondents.

Bissell Loofbourrow & Bird, for Appellant.

"If the plaintiff has performed his unenforceable promise the fact that before such performance there was a lack of mutuality in the remedy is no defense." (36 Cyc. 631; Frue v. Houghton, 6 Colo. 318; Elliott on Contracts 2281, 2283.)

The mutuality of remedy need not necessarily exist at the time of making of contract, but the mutual enforcement of the contract should be practicable at the time of the decree. (Gibson v. Riehle, 26 Colo. App. 127, 140 P. 933; Burnell v. Bradbury, 67 Kan. 762, 74 P. 279; Brown v. Munger, 42 Minn. 482, 44 N.W. 519.)

"If there is a mutuality of remedies when the case is ripe for a decree, that is sufficient." (First Nat. Bank v Corporation Securities Co., 128 Minn. 341, 150 N.W 1084; Dingham v. Hillberry, 159 Wis. 170, 149 N.W. 761.)

Peterson & Coffin and Chas. H. Darling, for Respondents.

The contract on its face is unconscionable and not such an agreement as equity will enforce. (Seymour v. Delancy, 6 Johns. Ch. (N. Y.) 222; 5 Pomeroy's Eq. Jur., 2d ed., 4945; Agard v. Valencia, 39 Cal. 292; Andersen v. Charles, 52 Cal.App. 290, 198 P. 641.)

The contract is indefinite, uncertain and incomplete, and therefore not such a contract as equity will enforce by specific performance. (Berry v. Wortham, 96 Va. 87, 30 S.E. 444; Citronelle Turpentine Co. v. Buhlig, 184 Ala. 404, 63 So. 951; Ward v. Newbold, 115 Md. 689, Ann. Cas. 1913A, 919, 81 A. 793; Van Dyke v. Norfolk Southern Co., 112 Va. 835, 72 S.E. 659; Clinchfield Coal Co. v. Clintwood Coal & Timber Co., 108 Va. 433, 62 S.E. 329; Davis & Roesch Co. v. Tagliabue, 159 F. 712.)

BUDGE, J. Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This suit was instituted by appellant to obtain specific performance of a contract for the sale to him of certain lands in Power county, owned by respondents Phillip and May B. Lavatta. A demurrer to appellant's amended complaint was sustained, and for failure to further amend within the period of twenty days allowed therefor, the cause was thereafter dismissed. This appeal is from the order of dismissal, and appellant assigns as error the action of the court in sustaining the demurrer and in ordering the dismissal of the suit.

It is alleged in the complaint that on February 12, 1918, Phillip Lavatta and May B. Lavatta, husband and wife, were seised in fee simple of certain real property therein described. That the sum of $ 8,500 was a reasonable price and adequate consideration for the purchase and sale of said land. That on the last-mentioned date the Lavattas executed and acknowledged a contract for the sale of this property to appellant for the sum of $ 8,500. The contract provided that appellant should obtain a loan of $ 5,000 on the property and as soon as the money was received it should be applied on the purchase price. The balance of the purchase price was to be paid as follows: $ 1,000 on November 1, 1918, $ 1,500 on November 1, 1919, and $ 1,000 on November 1, 1920, said deferred payments bearing interest at the rate of 8 per cent per annum, payable at maturity of each deferred payment. It was also provided that the three last-mentioned deferred payments should be secured by a second mortgage on the premises.

It is further alleged that the contract was filed for record on February 18, 1920; that the contract was just, fair and equitable; that the land in question was of peculiar and special value to appellant; that within two weeks after the execution of the contract, appellant negotiated a loan of $ 5,000 and on February 22, 1920, made an appointment with the Lavattas to meet them in Pocatello on the following day; that they failed to keep said appointment and avoided appellant and on the same day executed and delivered a deed purporting...