Zuniga v. Leone
| Decision Date | 17 April 1931 |
| Docket Number | 4879 |
| Citation | 297 P. 1010,77 Utah 494 |
| Court | Utah Supreme Court |
| Parties | ZUNIGA et al. v. LEONE et al |
Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.
Action by Joseph Zuniga and another against Antonio S. Leone and others. From a decree dismissing the action, plaintiffs appeal.
AFFIRMED.
C. E Norton, of Salt Lake City, for appellants.
Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondents.
The plaintiffs brought this action to rescind a contract for the exchange of real estate upon the ground of misrepresentation and fraud. The contract was executed February 20, 1926, by the plaintiffs and the defendants Antonio S. Leone and Josephine Leone. The substance of the contract was that the defendants agreed to sell and convey and the plaintiffs agreed to buy a certain tract of real estate at 804 West First South street, Salt Lake City, and a small stock of merchandise in a grocery store situated on the premises, for the sum of $ 6,900. As part payment, the plaintiffs conveyed to defendants their equity in another tract of real estate in Salt Lake City, at the agreed price of $ 1,750, and agreed to pay the remainder at the rate of $ 45 per month, with interest, and also agreed to keep the premises agreed to be purchased by them insured, etc. Possession of the respective properties was exchanged by the parties to the trade. George W. Nitchens, a real estate broker who negotiated the contract, was joined as a defendant and was served with summons but he made no appearance in the action. As no further proceedings were taken or claimed against him, we exclude him from any further notice. The other defendants appeared and contested the action. A trial was had before the court, who made findings of fact and conclusions of law and entered a decree dismissing the action, from which the plaintiffs have appealed upon the judgment roll, which contains no bill of exceptions or preservation of the evidence.
In substance the plaintiffs alleged that they were induced to enter into the contract by the false and fraudulent representations of the defendants concerning the value of the property agreed to be sold and conveyed to the plaintiffs. The defendants by their answer denied the allegations of fraud and pleaded that the plaintiffs, after full knowledge of all the facts, had subsequently ratified and confirmed the contract.
The trial court made findings of fact that the contract of exchange had been made as alleged; that the defendants had represented the value of the stock of merchandise to be worth approximately $ 2,000; that, immediately after taking possession thereof, the plaintiffs took an inventory of the merchandise and "determined and concluded" that the value thereof did not exceed $ 300, and demanded a re-exchange of the properties traded, which the defendants refused. The court further found as a fact that, as a part of the agreement of exchange, the plaintiffs had agreed to keep the property, agreed by defendants to be conveyed to them insured against loss by fire; that subsequently a dispute arose between the parties concerning the payment for such insurance, whereupon the defendants brought a suit against the plaintiffs in the city court of Salt Lake City which resulted in the parties executing a written agreement dated April 6, 1927, whereby they agreed that their contract of exchange entered into on February 20,...
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Zuniga v. Schiller
...have been in the courts for the last seven or eight years attempting to settle the matters in controversy between them. Zuniga v. Leone, 77 Utah 494, 297 P. 1010, and Leone v. Zuniga, 84 Utah 417, 34 699, 94 A. L. R. 1232. In the last-mentioned case it may be gathered from the decision of t......