*1 court, governmental entity part and its em- on the trial All Ameri of “[T]he Sweet, supra, and the issue Realty can v. ployee subject liability only shall for the trial court to should be remanded pro rata share of total dam- and realistic alloca make a more accurate ages awarded favor aof claimant tion of fees. which is attributable to act or omis- employee____” sion of the I.C. 6-§ DONALDSON, C.J., concurs. 903(b). statutory This abrogation joint of APPELLANT’S ON DENIAL OF several liability, governmen- at least as to FOR REHEARING PETITION tal employees, entities and their was enact- Justice, BISTLINE, dissenting. 28, 1980, 1, ed March July effective 1980. rehearing Appellant’s petition for has Sess.Laws, 218, 1980 Idaho p. ch. 490. brought attention failure of the to our Upon the filing petition rehearing a request for attor- respond Court to matter, we will no doubt have to ney’s fees. That inadvertence should be consider question whether corrected. applies amendment circumstanc- majority A has voted Court 11, es in this which case on March occurred against attorney’s fees to the an award 1980. appellant appeal he on an wherein clearly It prevailing party. seems to Ill me that such fees are mandated under 42 I also dissent from majori- Part IV the U.S.C. 1988 both federal and state § ty opinion attorney on fees. While the applied provisions cases which have plaintiff attorney is indeed entitled to fees that section. under 42 U.S.C. the amount should § J., HUNTLEY, be in proportion concurs. theory to the limited plaintiffs which prevailed against Offi-
cer Throughout Martin. plain- alleged pursued
tiffs a full ten causes defendants, against action three Officer
Martin,
Boise,
City
and the mother.
attorney
The total
expended by plain-
fees
American
Inc. v.
(1984) (140
day trial. award of attor- 90%
ney represents fees an abuse of discretion
which held that the amounts forfeited un- der the bear a relation reasonable actual and there- vendor’s fore an do not constitute unconscionable penalty. *3 agreed purchase Corporation
A.M.R. to 3,800-acre located in Clampitts farm price County, purchase Elmore Idaho. The million to be as follows: $2.3 $10,000 pur- down at execution 1974; agreement September, chase $250,000 December, 1974; $250,000 1975; and February, the balance semian- $89,500 payments nual Of the each. 2,140 acreage, total farm were under acres 1,400 irrigation, approximately acres were yet developed to be water re- use, yet put served but not to beneficial dry and the After exe- balance land. cuting agreement purchaser, Corporation, possession A.M.R. took of the Vendors, farm. Clampitts, retired from farming and moved to the of Wash- State ington, although the remained vendors joint lessees of in a record venture with during their son the growing season of purchaser’s 1975. It was intention to lease farm, develop unirrigated out the por- tions, eventually entire farm divide the profit. into portions smaller to be sold previously purchased, A.M.R. had subdivid- profit ed and adjoining sold at an larger even farm. difficulty making
Purchaser had payments, subsequent initial and two con- tract were amendments executed allow payments. for late Purchaser was unable to discharge semiannual negotiations continued were unfruitful. In Grover, Walker, Blair Rig- Grover & September, vendors filed the initial by, for defendant-appellant. seeking complaint present in the action forfeiture, declaration of return Jay Friedly, R. Friedly, of Hall & Moun- farm, quiet title. Home, and a determination of tain for plaintiffs-respondents. amounts Purchaser counterclaimed that the BAKES, an uncon- Justice. retained in forfeiture constitute penalty. scionable appeal
The sole issue in this apparently stipulated to purchaser whether the amounts the ven The retained judgment granting return pursuant partial dor a real summary forfeiture of estate forfeiture, judgment property, contract constitute an unconscion At defaulting quiet in favor of the vendors. penalty purchaser. able title stipula- summary judgment judgment We affirm the time of the court alleged [purchaser’s] result of there was an oral settlement breach as tion to be exor- having parties agreement amounting between an pen- bitant unconscionable repossession of prop- with vendors’ alty.” do financing, obtaining develop- of new erty, purchaser appealed, has arguing portions, unirrigated possi- ing of many of the items of vendors’ dam- purchaser. resale of the
ble ages as found the trial court were un- alleged This settlement was re- supported by improperly the evidence or writing, purchaser duced to but refused to allowed. in dispute. execute since the terms were appellant, defaulting purchaser Washington, returned from The vendors case, present appears to take the farm, possession took obtained position that previously paid all amounts financing new in excess of million in $2 a forfeited real estate contract constitute existing discharge indebted- order *4 "unjust enrichment” to the vendor and that in ness which was default and install a may only vendor retain those amounts irrigation major system apply pre- and proved by to be substantial evidence “set- rights, expire the water due to serve then against unjust po offs enrichment.” This put After unless to beneficial use. suc- prior sition is not consistent with our cases. refinancing cessfully developing and “ ‘Generally speaking, parties to a con farm, the vendors then resold farm may agree liquidated damages in tract irrigation new improvements with the to a breach, anticipation of a in case purchaser $3.8 different for million. where circumstances are such that proceeded purchas The case trial on damages accurate determination of the At er’s counterclaim. the time forfei impossible, pro would be difficult or and $510,000in purchaser paid princi had ture damages liquidated vided that the fixed $221,753.24 pal in interest to the ven by the contract a reasonable rela bear also dors. Purchaser claims consideration But, damages. tion to actual where the taxes, improve of other amounts damage or fixed the con forfeiture personal trial property. ments and The arbitrary tract is and bears no reason expenses in re court found that vendors’ anticipated damage, relation able possessing, refinancing, reselling unconscionable, is exorbitant property that those were so “intertwined” regarded “penalty”, as a and the con damages. expenses be considered as must provision tractual therefore is void found vendors’ actual dam The trial court Cupic, v. 75 Ida unenforceable.’ Graves $305,648,1 consisting ex ages to be 451, 1020, 456, 272 P.2d ho [1954]. eradication, sprinkler pipe penses for weed fees, real attorney loan fees and repair, seeking In relief “... forfei- resale. The estate commissions ture, proving such the burden of facts rental trial court also found reasonable defaulting purchasers].” rested [the $447,518.51 during property Co., v. Bell Land & Cattle Howard Bar years purchaser the two in which 189, 197, 103, Idaho 340 P.2d possession property, and that there (1959). no depreciation appreciation had been Further, “it the trial court deter- during pur is for property the value any particular case under the facts of possession. concluded mine chaser’s The court stipulated damages establish, purchaser by a the amount that the whether “failed to to the dam- evidence, relation such reasonable preponderance that under bears be enforce- actually as to ages sustained the facts here the it made on the provision liquidated dam- as a able disproportionate contract were so Knowles, 87 Idaho ages.” Nichols actual incurred as a [vendors] were included in the slightly on what items specific did court not list the items sum, arriving disagree and the briefs sum. (1964). finding 394 P.2d II of the trial court as to whether the forfei- Damages Actual liquidated damages ture and constitute an penalty unconscionable will not be over- A. Market value appeal turned on clearly unless it is errone- 52(a). ous. I.R.C.P. In addition to A.M.R.’s claim that the amount forfeited exceeded the reason In present purchaser able rental value of the and other voluntarily agreed items, damage alleges A.M.R. allowable that in the purchaser's event of default the premises that the market value of the in remedy retaining vendor had the all creased from the date of paid, purchaser amounts and that execution of the would breach, all forfeit interest in the contract until the time of the purchaser vendors. Thus the had the bur gain should have been considered proof den of at trial to show that these determining the trial court in the amounts liquidated damages bore reasonable re purchaser. forfeited This Court has lation to damages. the actual Howard v. that, past held in the absence of a Co., Bar Bell supra. Land & Cattle contract, liquidated damage clause in the “the measure of for breach of an
I
executory contract of sale is the difference
Liquidated Damages
price
between the contract
and the market
*5
premises
value of the
at the time of the
forfeiture, purchaser
At the time of
...,”
breach
State ex rel.
Cling
Robins v.
$510,000
paid
$221,753
principal
had
er,
222, 230,
1145,
72 Idaho
238 P.2d
in interest on the
contract. Pur
(1951).
liquidated
Where there
$7,338
damage
is
paid
chaser had also
the amount of
clause, a similar
irrigation
toward an
mainline
determination of
dif
which the
repossessed
seller
property.
price
with the
Pur
ference between contract
and market
$13,783
paid
chaser had also
premises
for the 1975 value of the
should be made to
property
part
taxes which “was
determine whether or not what
[the]
the seller is
obligation,
pay
the same as
acquiring back
[the]
as a result of the forfeiture
upon
balance,”
principal
ments
Ander
is more valuable than what he contracted
Michel,
228, 239,
son v.
398 P.2d to sell. While
generally
the rule is
stated
228,
(1965),
and should be viewed as an
as the difference in values at the time of
amount
under the contract.2 There
breach,
necessarily
“this rule
presup
fore,
paid by purchaser
the amounts
which poses that
the vendor is free to use or
liquidated
were forfeited
are:
dispose
property
on the date of
Accordingly,
breach.
if the vendee has in
by purchaser
Amounts forfeited
terfered with the vendor’s freedom in this
$510,000
Principal
respect, by retaining possession or assert
221,753
Interest
ing an interest in
property,
vendor
13,783
Taxes
include
additional
7,338
caused
Irrigation equipment
thereby in
necessary
give
the amount
$752,874
Total
returning possession
2. Vendors concede in their brief that the trial
the court order
of the farm
forgot
"evidently
homes,
court
to consider the taxes ...
to the vendors covered the mobile
never-
payment
irrigation pipe
paid by
...
possession
theless the vendors retook
A.M.R.”
apparently eventually
mobile homes and
sold
$24,161 paid
principal
Purchaser also claims
them. The trial court concluded that the mobile
pur-
and interest for mobile homes which were
part
homes were not
of the real estate contract
separate agreement
chased in a
from the ven-
and transaction and therefore did not include
property
dors and which were left on the
eventually
paid for
the amounts
them in the forfeiture
resold
the vendors. The trial
calculation, although
purchaser
it noted that the
though
court
even
noted that
vendors retained
separate
against
would have
claim
the vendors
homes,
no title or lien interest in the mobile
compensation
agree.’
for "fair
therefor." We
stipulation
parties
that neither the
or the
nor
bargain.”
him
$46,-
the benefit of his
77 Am. value of
undeveloped
land to be
489,
266.51,
p.
Jur.2d Vendor
Purchaser
upon
§
based
what a
re-
reasonable
Honey
Henry’s
See also
Franchise
turn on
equity
investment or
yield
would
Corp.,
farm,
Leasing
Cal.Rptr.
$401,252
Cal.2d
for the entire
less the
allo-
(1966).
Purchaser aware that a breach on its part underly could cause a breach on the D. Miscellaneous ing contract and therefore jeopardize the other various items There were several property. loss of the entire Purchaser was alleged damage, some of which the trial develop also that the failure to aware sum, damage in the actual court included unirrigated apply rights land and water others of which the trial court did not in- beneficial might use result the loss of clude, and still others which it is not certain rights. the water parties At trial both they whether were included or not. After urgency testified as to the for someone to considering objections each item and the cure the underlying defaults on the con them, eliminating some of them from tracts apply and to the water appeal, our consideration on this we never- expiration.3 beneficial prior use Prior to theless conclude that the vendors’ actual losing possession, purchaser was also damages approximated the amount forfeit- trying refinancing to obtain in order to following ed as reflected in the schedule: defaults, irrigation develop cure the damages: system hopefully subdivide and resell Vendors actual Therefore, property. we find error $447,518.00 Reasonable rental considering in the trial court’s these costs Damage 800.00 sprinkler pipes determining to the vendors in repossession Costs of refinancing: the unreasonableness the forfeiture. 600.00 Loan commitment purchaser argues that even if 11,000.00 Loan commitment allowed, only portion the resale costs are 44,908.00 Loan fee & interest realtor’s commission policy should con Title fees& 5.954.00 Appraisal 250.00 sidered. The trial court allowed entire Attorney fees 4.500.00 $3.8 commission on the million resale value Attorney fees 6.730.00 only rather than a commission on the $2.3 Title fees 200.00 was the value of the million which Costs of resale: purchaser yielded possession. when the 224,640.00 Realtor’s commission argues if Purchaser allowed vendor $747,100.00 Total *7 always unjust could defeat an enrichment $747,100 by improving reselling prop claim the When in actual comparing the However, erty. evidently damages $752,874, the trial court to amount forfeited the clause, improve damage found that the vendor’s need to the liquidated the damage irrigation system proper application the clause liquidated the and resell and reasonable.4 ty purchaser’s appears resulted from breach. As a in this fair argument, purchaser's attorney argued damage calculation and our 3. At oral trial court’s total rights primarily that the water could have been extended trial from the calculation results However, $225,- application a mere for extension. be of the rental to court’s determination 765, suggests party the record that neither was aware offsetting computed first which it possibility, purchaser’s of this and the own testi- $447,518 figure the interest gross the rental mony apply need to the water characterized the $221,753. To more accu- paid by purchaser of "emergencies’’ facing as one of the the pur- rately the amounts forfeited reflect parties. chaser, damages, list- we have and the vendor’s damages, gross and the interest rental as ed the damages the vendor’s to 4. The trial court found purchaser. forfeited paid an amount $225,765 $531,413.27, in be which included lost result, above are actual $221,753 listed As $305,648 expenses because of "net" rental and in more than the approximately between the default and resale. The difference 152 Michel, $7,338 Anderson v. 398 on sellers’ Cf. (1965); 228 P.2d Institute on Real Estate sprinkling equipment. Defaults, Clark, Merlyn W. Defaults of majority ap- The who believe itself Executory Land Sale Contracts —Ven- rule plying Cupic, Graves v. Remedies, (Idaho p. dors n. 66 Bar (1954), Idaho P.2d has. 1982). foregoing Foundation calcula- mil- charged one-quarter the vendees with compensation tions make no allowance for lion which was the dollars commission Clampitt to Mr. for the several months’ on the sellers’ which vendors resale personally spent develop- time which he in brought million into them dollars more $1.5 ing installing irrigation sys- the new they receiving than were cancelled tem, which be an should additional factor The majority charges contract. also considering whether the actual $60,000spent with over refi- vendees in the relationship liqui- bear a reasonable to the $11,000 nancing, attorney’s and over damages. dated fees, unspecified, apparently but incurred We that the trial court’s deter- conclude refinancing reselling. By adding and/or mination that the forfeiture clause in the amounts, large majority is able those operate contract does not as an unconscion- $747,100 compare dam- then actual supported by able in this case is forfeiture $752,874 ages agreed forfeited as competent evidence and is substantial and liquidated damages. This is all said to be 52(a). clearly not erroneous under I.R.C.P. evidently possible “the trial court because
Accordingly, judgment the trial improve that the need to found vendor’s is court affirmed. system proper- and resell the irrigation attorney respondents. No fees. Costs to ty purchaser’s from the breach.” resulted recurring is another of this Court’s Here C.J., DONALDSON, and SHEPARD is “evidently found” ipse dixit’s. Because JJ., HUNTLEY, concur. following sentence transformed then finding need majority’s “that the Justice, into the BISTLINE, dissenting. What flowed from the breach.” resell opin- in the Court’s very facts stated finding, actually signed as a the trial court flag. The large red veritably ion wave exactly he wrote was what and which mil- agreed purchase price $2.3 Decision, in Memorandum for himself his property was returned lion. After the is: again time for it was sold—this the vendors farming years had Only million. two $3.8 intervened, After the ven- 1975 and 1976. XXIV they did possession, into dors went back by defend- expenses caused Plaintiffs’ portions irrigation system major install a expenses in plaintiffs’ defaults and ant’s at the time of huge farm which are party a third reselling the farm sagebrush had not there- sale to- must considered intertwined These water. served with tofore been gether. by the improvements made vendors were Finding No. highly It doubtful is and it regained possession, they had
after fact, but rather finding of XXIV is a expenditures beyond dispute that such *8 to Wheth- appears be. of law it conclusion price on the the sale have increased would conclusion, finds no finding a er a it be in buyers second sale. million $3.8 findings, and the other in of support paid almost occupancy had two-year their concept unsupported i.e., presents a novel and dollars, a million three-quarters of with Graves wholly at odds of the in- $731,753, principal and payments of in law— Moreover, finding is the taxes, progeny. and its and terest, $13,783 estate in real dam- comparison actual making a when figure for the amounts figure, our and court’s larger ages amount forfeited. that same by purchaser is
forfeited
merely wash
a
are
differences
amount. The
153
manufacture,
not of the trial court’s
procedure
but
to follow if assistance of coun-
product
ingenuity
plaintiffs’
of
coun
in
sought
drafting
sel is
findings
of
prepared
sel
the findings
who
and conclu
is,
of fact and
of
conclusions
law
as
sions for the trial court at the trial court's
Compton,
in
request
noted
proposed
direction, in direct contravention of this
findings and conclusions from both sides
Gilmore,
in Compton
Court’s directive
v.
and to utilize these in the drafting of the
190,
(1977),
98 Idaho
P.2d
repeated
560
861
findings
(Em-
court’s
and conclusions.
Harris,
758,
in Matheson v.
572
98 Idaho
added.)
phasis
(1977),
P.2d 861
and still the case law in
case,
particular
In this
where the trial
In
Geisler,
Idaho.1 Marshall
v.
99
Bros.
judge conscientiously labored to write his
734,
1,
933, 936,
Idaho
737 n.
588
1
P.2d
n.
Decision,
own
foregoing
Memorandum
(1978),Justice Bakes wrote for the Court:
passage
regarded,
be
would
properly
and
do
strong
We
not alter our
admoni-
so,
here,
as mere diatribe. But
the reason
state,
tions
both
in
bench and bar
this
for the rule is self-proving. The trial court
expressed
as
Harris,
in
v.
Matheson
98
justified
signing
his name to set of
758,
(1977),
Idaho
ered considered therewith. Finding Fact XXIV Memorandum Decision No. Corrected
Expenses Expenses Incurred are Caused [uivalent Whether or not counsel took undue liter- majority more and the use made ary writing license in a self-serving of that XXIV, Finding quote No. and I di- which court had written is of little rectly majority from the who best demon- easily It moment. have as been whol- taking literary strate the license: ly way, inadvertent. Either fault Judge Wright lawyer puts your Skelly These As J. said in his "Semi- nose. some lawyers, Newly so, Appointed properly nars for United States District in their zeal and Judges," quoted approvingly by the which was advocacy going their enthusiasm are Supreme United States Court United States findings for their side in these state 651, Company, El Paso Natural Gas U.S. they possibly strongly can. as When these as findings get 656, 1044, 4, 84 S.Ct. n. n. L.Ed.2d apeals they won’t courts of (1964), Compton, supra, Court in they paper as far be worth the are written on Idaho at 560 P.2d 864: assisting appeals court in determin- as suggest you strongly you "I avoid ing why judge decided case." you possibly signing simply can what far as
154 expenses The other in- expenses present Plaintiffs’ In the case the by curred Plaintiffs after caused defendant’s de- trial court found that the plaintiffs’ default Defendant’s were faults and repossessing, ex- costs of refi- penses intertwined with the reselling nancing resale reselling the and the the and party must farm third to a are were “intertwined accordingly be considered intertwined and must be be and must to- considered together. gether.”
therewith.
considered
Finding
Corrected Memorandum
Fact
Majority Opin.
Decision
No. XXIV
breach,
follow-up
observing
damages
beyond
As a
to
the remarka
for its
the
are
metamorphosis
legally
ble
of an
but
honest
involving
the
scope of
annotation. Cases
questionable
trial
statement
the
court to
recovery
liquidated
actions for the
dam-
Supreme
finding,
only
Court
it is
neces
ages
beyond
also
52
scope,”
are
A.L.R.
sary
majority’s
to observe the
use of it.
not,
enough
which should be
said. If
majority’s
Part
to
opinion,
C
see the
the full statement of what Justice Bakes
finding
“This
of fact
distortion effected:
paraphrased,
has
with citations
omitted
supported by
compe
substantial
not omitted is:
Having
the fact
tent evidence.”
recreated
general,
upon
In
the basis
which dam-
then,
liking,
majority
ignor
to its own
ages
against
will be assessed
a vendee
ing
is
than
that it more of conclusion
a fact
executory
breach
his
singular
ignoring
fact that the
compensation
is
real estate
attempt to
court did not in the least
sub
it,2 lay
what is believed to be
injury
stantiate
out
vendor
the loss or
sus-
justification.
him,
tained
reason of
vendee’s
however,
...;
amount,
breach
be
groundwork
for this remarkable ex
are
limited to such
as
the nat-
fantasy
into
is said to be found
cursion
melding together an unrevealed statement
probable
result
breach
ural
a wee bit of
from an ancient annotation and
(Dullea
(1874)
U.S.Q.B.
Taylor
v.
Michel,
in this
dictum
Court’s Anderson
395),
reasonably
might
have
and which
(1965).
P.2d 228
“A
contemplation
within the
been
may
as
also claim actual
vendor
(Hurd
(1884)
parties
v. Dunsmore
from the breach and
costs which flow
171).
(emphasis
A.L.R.
N.H.
.the
have been within
contem
which could
added).
at
time of con
plation
parties
reading
Appen-
As
from
will be noted
tracting____ This Court noted Ander
rely
dix,
only
upon
did not
the trial court
Michel,
possible
supra,
‘the
son v.
it,
annotation,
did not mention
nor
but
expenses
be
property’
of resale of
party
where
for either
had
do I see
counsel
considered."
Moreover, it must
audacity
cite it.
“see,” in-
Bakes
When Justice
writes
that the trial court
particularly
noted
I
quoting
citing,
follow that
stead of
evidence,
pointed
no
finding,
made
admonition.
refinancing
expenses of
not deal with a case
annotation does
contemplation of the
were within the
resale
unjust
enrichment
upon
claim
based
they
Jus-
parties
the time
contracted.
title-retaining real
following
of a
forfeiture
attempt
pro-
majority
and his
tice Bakes
annotation
Rather
estate contract.
ap-
in their
determination
that factual
vide
rights of
prefix: “The
out with this
starts
not seem to be
does
pellate decision—which
of the con-
his rescission
vendor
Justice’s much-to-the-
keeping
with the
tract,
action for
an
distinguished
as
from
Decision,
copy
is attached
assumption
of which
dum
I
correct
2. Whether
am
Appendix A.
gleaned
the trial court's Memoran-
best
*10
contrary
appellate
fact,
usual views about
with proper
findings
fact
the costs of
finding.
refinancing
reselling
property.”
or
the
For
second,
this
all-encompassing, wholly con-
Finding
Counsel-drawn
No. XXXIII has
dixit,
ipse
jectural
cited,
authority
no
is
counterpart
no
in the trial court’s Memo-
Michel,
other than
Anderson
Decision,
88 Idaho
randum
other than this one sen-
(1965).
portionate stipulated nothing responsive urged by counsel for applica- By in the terms of the contract. parties, unthinkingly interjected stipulated tion terms for of the contract breach, damages the defendants’ a thought expense possible of an of resale. plaintiffs made more than herein are not have envi- Little could the Court 1965 whole, no penalty and there results unno- small and heretofore that sioned that provision for application of the contract wholly unsupported in pen, slip of ticed cancellation and termination of the con- present- case law, in the wholly unfounded tract, moneys paid of and retention to frus- be used ed, day later one would sustained, plaintiffs.. Actual produce principles Graves trate both do anticipated damages, bear Moreover, miscarriage justice. blatant a relationship to the sums a reasonable damages which consequential huge paid by the on the contract defendants allows, i.e., expenses huge today Court or unconsciona- and are not exorbitant resale, not are immensely profitable an the same could bé ble to the extent that contempla- within been to have shown provi- penalty under the considered time the title-re- parties at tion (Emphasis add- Idaho law. sions Noth- into. was entered turning contract ed.) it was. contract evidences ing surmise only pure uses Bakes Justice Decision, written, In a filed Memorandum Generally speaking, otherwise. intimate language he forth in almost identical set recognized ordinarily has this Court necessary computations compar- the the Baxendale, Eng.Rep. 156 v. Hadley rule ing liquidated damages, actual (1854). 145 and his conclusion: Although considerably is more there occasioned to the seller The loss which could and should said about this words, default, purchasers’ in other actu- majority opinion, Court’s damages, al bear a reasonable relation- hope I do that it will apologies without ship paid by purchasers the sums has somewhat my time been be noted or on the contract and are exorbitant opin- contemporaneous up taken with other they would to the extent unconscionable or be announced. ions announced about penalty even under the be considered absolutely judgment this case law, in view the provisions of Idaho reversed, Cupic v. or should be Graves (Empha- the transaction. magnitude of progeny overruled. added.) sis Wash. ed in the Sealander, and Thiel v. [1081], cases Ball 183 Wash. 81 Pac. Miller, The law of the (2) [Hall] 857; Wash. [49] Van Keulen v. state Wash- Nordgren, Pac. (2) 19; Pac. 196 sion or not it contained in the ington against public is that a forfeiture liquidated considered policy, instant damages. regardless contract, penalty, clause, is not void such as whether provi- 1, 1975, therefore, APPENDIX A July As of Defendants $510,000 principal had a total of on the IN THE DISTRICT THE COURT OF $196,765.74 purchase price; on ac- FOURTH JUDICIAL DISTRICT OF interest, crued and the balance for attor- IDAHO, THE OF IN AND STATE ney, collection and escrow fees. FOR THE COUNTY OF ELMORE were No other made De- *12 DELBERT CLAMPITT & DELSIE CLAM $25,000 agreement except fendant on the a PITT, wife, Plaintiffs, husband and 30, payment April paid on 1976 which (Defendant’s interest accrued to that date vs. 51). Ex. CORPORATION, corporation; A.M.R. meantime, 17, 1975, In the on December FARMS, corporation; JUDD L.J. Plaintiffs served Defendants with a notice SONS, INC., RICE & and SOUTH non-payment of default for of the Decem- WESTERN FINANCIAL CORPORA 10, payment. parties ber contin- TION, corporation, Defendants. try ued to enable Defendants to to com- Case No. 5416 plete payments agreement on the until May CORRECTED 22, 1976, again when Plaintiffs served De- MEMORANDUMOPINION default, citing fendants with a notice of 10, non-payment of both the December APPEARANCES: 10, $89,500 February pay- 1975 and Hall, Chartered, Friedly, Perce Hall & ments, by followed a “notice of forfeiture” Counsel for Plaintiffs 1, July September on 1976. On 1976 this Grover, Walker, Blair Grover & Char- by action was filed Plaintiffs to remove tered, Counsel for Defendants Defendants from the and clear Court, post- This matter was tried to the Plaintiffs title thereto. submitted,
trial briefs have been and the 20, 1977, January pursuant stipula- On ready matter is for decision. tion, by an order was entered the Court declaring Many the sale contract forfeited and undisputed. basic facts are 3,840 quieted clear title to the farm to be Plaintiffs sold Defendant A.M.R. a $2,300,000.00. Plaintiffs. acre farm in 1974 for De- purchased expec- fendant the farm with the leading up Evidence as to the discussions dividing reselling tation of it and smaller stipulation to such is in irreconcileable con- 2,140 farming parcels profit. at a stipula- flict. Plaintiffs contend that the 1,400 irrigated, acres were about more prompted by inability tion was Defendant’s developed irrigation, could be and the get financing payments meet on dry balance was land. The sale was purchase necessity and Plaintiffs retaining whereby title real estate contract pay purchase agreements on their and to $10,000 price was as earnest perfect undeveloped water on the $250,000, money; plus percent accrued 9 by getting irrigated. They acres them 11, 1974, July interest from was due De- agreement claim an oral was made that 10, 1974; $250,000more, plus cember inter- they pay would obtain a loan to off their est, 10, 1975; February on and the balance prior purchase agreements develope interest, $89,500 each, plus acres, unirrigated compensation receive February on the 10th of December and that, for their work to do and that Defend- year purchase price each until the ants, interests, protect were to their
paid. difficulty making Defendants had right have a “first of refusal” before there $250,000 payments and extension subsequent could be a sale of the farm agreements were twice entered into agreement A Plaintiffs to another. written result, parties. As a Defendants made and stating details of Plaintiffs under- $140,000 accepted payments pre- standing negotiations Plaintiffs of such oral 31, 1974, $150,000 April pared on December on but never executed Defendants $407,314.24 (Defendants 43). 14, 1975, July on Ex.
farm. This would leave a rental value of $46,266.51 (447,518.51 401,252.00) less allo- agree with do not Although Defendants cable to the undeveloped land peri- over the negotiations; the oral version of Plaintiffs’ od of the contract. appears It reasonable not did that Defendant uncontradicted it is and Defendants did not submit any evi- sign proposed written dence whatever relative to rental value of it advise Plaintiffs return or ever did not the undeveloped land. fur- There is acceptable. that it was dispute but that June thermore Michel, Under Anderson appears Defendants Plaintiffs advised $447,518.51 from such rental value the farm offer to they had an $221,753.24 should be deducted the in inter- offered, had Defendants and that price est which Defendants pay, leaving did to meet the offer. days $225,765.27 of net rental value. is es- urge that Defendant Plaintiffs Omar, Under Melton v. any decrease in *13 right deny agreed to the that it topped property value of the during Defendant’s acquiescence by refusal its silent of first possession should be added to the rental es- (and it is therefore apparently that to compute value damages. Plaintiffs’ Any consti- claim topped to increase in value should logically then be it is penalty which an unconscionable tuted deducted. After considering testimony back). I resolve to recover entitled appraisers, of the the evidence relative to however, favor, in in Defendant’s question the two sales of the property and of other 43, pre- Ex. in of the clear inclusion view property in the area at about the time Plaintiffs, would Defendant by that pared pertinent, I conclude totality that the only its counterclaim dismiss evidence shows that after signifi- there was no executed; my conclu- agreement was cant increase or decrease in the value of refus- purported right first sion that between the time Defendants Defend- fully it purchased not communicated July in al was and the ulti- Babler, by Gyurkey required mate default and ants as July forfeiture 1976. P.2d “liqui- that Defendant contends The expenses The other by incurred Plaintiffs contract is damages” provision in the dated after Defendant’s default were intertwined and unenforceable. penalty, void a with the resale of and must accordingly be considered therewith. in this the evidence preponderance of pay- that establishes however the Plaintiffs evidence shows that by retained by made Defendants ments upon the second unjustly enriched were not relationship to a bear reasonable Plaintiffs sold at a Although it was of the farm. sale from by damages incurred Plaintiffs actual contract price than Defendants higher a breach, not constitute and do Defendant’s invest- Plaintiffs made substantial price, penalty. improve it. money of time ments Watt, witness, a C.P.A. James Plaintiffs for value” of “rental calculation The best and ex- accounts with Plaintiffs’ be, familiar 2,140 developed land would acres of was actu- explained there penditures, how $401,252 brief, set out Defendant’s as subsequent sale. ally loss on the and aver- acres yields on from those based rental $5,000 This allow age prices. would except Accordingly, for remaining $310,- advertising, whatever value lost claimed posses- acres, by also had Plaintiffs expenses which Defendants claimed 648.00 preponder- reasonably by In order established in 1975 and 1976. sion of $305,- evidence. When undevel- for the ance a “rental value” calculate $225,765.27 in rental is added in Plain- 648.00 land, merit I oped see considerable value, appear actual it would on “return “return on investment” tiffs $531,413.27, than amounting to more were computa- Plaintiffs’ equity” theories. The De- $510,000 by made payment down reason- $447,518.51 appear to would tion fendants. the entire approximate rental value ably Time will soon demonstrate that it is bad litiga- law which wil1lead to an increase in Plaintiffs, pointed by out even if the As unjust results not ever tion and Produce payment as down were as much 12.7% by litigating contemplated parties evi- Supreme damages, than actual our more written denced their contracts. has held it could be reasonable. Court Therefore, I conclude that Defendant has conceded, many As I have occasions establish, by preponderance failed any day three members of this Court evidence, that here the under the facts (result- a case way want to decide a certain payments made on the were so contract oriented), irrespective existing law or disproportionate to the in- actual law, making new their will will If be done. curred Plaintiffs as a result of Defend- today majority were forthrightly breach as amounting ant’s to be exorbitant law, making declare to be I themselves new penalty. to an unconscionable But, would be disturbed. majority less forthright admission, makes no such that, It was established the evidence contrary on the would have it believed that here, outside De- involved Anderson, a bit of dictum found in purchased personal fendants property con- excerpt dissected from an ancient A.L.R. sisting of mobile homes and furniture annotation a backbone majori- form $20,907.00 Plaintiffs therefor ty holding. Although my previous effort $2,453.85 principal and Plain- interest. exposing this dissemblance did pro- tiffs retained no title or interest in the lien slightest response, voke the I am not dis- personal property. The evidence indicates *14 suaded one last writing from which nar- is possession Plaintiffs also took of such dictum, rowed down and to the they when possession re-took excerpt. A.L.R. 1977, in January although the land neither stipulation or court order covered such law in What the Idaho has been personal property. Although I do not feel Clampitt. until that Defendant is entitled on the to credit 451, Cupic, estate contract Since Graves v. 75 Idaho money real for for the (1954), announced, its property, P.2d 1020 it and personal neither Plaintiffs should progeny proposition stood for personal have that retain such without fair contract has compensation vendee whose been terminat- therefor to Defendant. is, by theory ed the vendor under a may Findings, accordingly Counsel draft enrichment, unjust en- restitution based Judgment Conclusions consistent titled to back from the recover vendor that opinion my consideration. payments amount which the ex- made 1983, day February, this 22nd DATED ceed the vendor’s actual caused NUNC PRO TUNC. provided, the vendee’s how- breach— /s/ Robert M. Rowett ever, that the difference between the same ROBERT M. ROWETT disproportionate provision is so that DISTRICT JUDGE whereby vendor would be allowed paid by (usually retain all monies vendee ON DENIAL OF FOR PETITION terminology liquidated under the dam- REHEARING ages) penalty. to be a is held BISTLINE, Justice, dissenting. making The that rules determination many have been times well stated over PREFACE years. The more than 30 vendor is entitled likely gained little to be re- There against to set off vendee’s that Nevertheless, ground. I the same plowing to be amount found reasonable rental for effort at constrained to make a final occupation feel premises. the vendee’s majority is exactly special damages out where the pointing There which also erroneously gets it how taking Always the law and afford the vendor a set-off. a con- making a majority today is that on the sideration is vendee’s surrender there. change premises, including personalty, vendor-vendee. of often in the law of drastic
proper element of A consideration. vendor who repossessed might has decide to sell are be of less value than the same found to again, might might he not. He sell In inception. contract’s Anderson v. at the again years, after five years, after ten 239, 228, Michel, P.2d event, immediately any no court instance, (1965), for court —but until today actually speculated has that that the fair market value of found “possible expenses of a resale” are to be $31,140 realty it turned back was when was certain, taken into account. For absolute posses when vendees took less than Graves, only case cited in Anderson at Idaho 398 P.2d 232. In sion. 88 at “possibility novel of resale” doc- today, Clampitt, has cost case until slightest trine made not the intimation that repossessed premises a resale of the such was there involved. Nor was it in- been as an of a ever considered element volved, perusal aas close of that file dis- damages. vendee's Nor was in Ander closes. judge The trial who decided son. explicit: If one of the majority member would add “Actual here sustained opinion explanation to its an reasoning why plaintiffs rela do bear reasonable from the statement Anderson is not sheer tionship paid by the defend the sums dictum, I would obiter withdraw the dis- contract, ants on the and are not exorbi sent. tant or unconscionable to the extent If one member of the they penalty majority could be considered a would law, likewise to that add some provisions considering reasoning valid of Idaho halfway which is even magnitude convincing that the the transaction.” An A.L.R. excerpt has derson, application supra, at P.2d at case, I would withdraw the dissent. Court, Supreme making after minor adjustments, came to the same conclusion. If the majority one member of would judge, agreeing with the district it used In opinion something likewise add to language practically identical the record which shows that those contract- judge: district ing parties contracting the time of both *15 expenses Having in of mind the costs damages contemplated special the kind of litigation, expense a possible the of vendors, by which here were claimed the property, magni- resale of the and the court, by awarded the trial and sustained transaction, of the we that tude conclude Court, by would with- majority a of this I by plaintiffs liqui- the amount retained as noth- Presently draw there is the dissent. damages a rela- dated bears reasonable ing ipse dixit majority’s behold but the damages the actual sustained and tion to made: “It is of which mention earlier not so exorbitant unconscionable is damages possible that these additional penalty. Cf. v. to constitute Graves include, proper prop- with could in the 451, 272 1020 75 Idaho P.2d Cupic, fact, refinancing findings er of the costs of Anderson, 239, at 398 (1954). supra, years property.” For has reselling or the at 235. P.2d profession mistaken the labored under the party claiming special dam- belief that a the “Practically” say, I because of insertion actually ages that had to show such were expenses possible of phrase, the “the of contemplation of implicitly within the or judge The district property.” of the resale inception parties the the contract. the at language. A resort to the not use that did (1965); also Damages 22 56 Am.Jur.2d § discloses that file in the clerk’s office 57, 58, 59, therein 60. The law as §§ “possible made that was ever contention accepted by upon and relied reviewed was pleaded or was ever expenses of resale” leading v. case Brooks this Court go equa- into as an element claimed 425, Jensen, 201, 218, P.2d 270 lengthy and com- trial in a tion. The court (1954): 442 in decision and prehensive memorandum appel- deciding, without Conceding, findings and conclusions of fact detailed be entitled in rescission might lants law, subject simply never touched on — pay- to return in addition damages held to be had never been because it. during said the time pos- session of the same is retained ments and improvements, value of hereunder, buyer may or the seller at its Co., Houchin v. Braham Invest. option bring equity an action in or at law 540, Minn. 370, 279 N.W. 120 A.L.R. specific performance damages. 1154; see also Stewart Salisbury Re added.) (Emphasis Co., alty 230, & Ins. 159 N.C. 74 S.E. 736, and O’Connor, Vicker v. 218 Wis. interest, paragraph displays that it Of 216, 426; 260 N.W. appellants’ expenses contemplation parties of the within trips and loss in the sale might pay- that the vendors fail to make Montana, their property in though nec underlying ments on their contracts—in essary to secure pur make the funds purpose pro- “then for the which event herein, chase are too remote and were tecting equity buyer its said not sufficiently contempla within the may option any payment its make parties tion to be recoverable. 25 necessary protect deemed it to be C.J.S., Damages, 24, 25, 481, pp. 488; §§ under this contract and such 15 Am.Jur. 52 and § § payment buyer made shall be credit- (Emphasis added.) purchase price ed to be Although the author majority opin- seller, interest, principal either of going beyond ion avoids declaring what agreement.” Nothing the terms of this “additional could include in the contract, record, justifies nor in the case,” proper implicit in majority opin- majority finding that which the trial premise ion is the that the judge did special court did not find—that the dam- special question against find ages charged here the vendees have been within the rule of Hadley v. contemplation par- were within the Baxendale, 9 Exch Eng Reprint inception ties at the of the contract. (1854), and Brooks. He did not do so. gone by In the four months which have Rather, only he found special damages 6,May opinions since our were released on actually sustained vendors—which were 1985, majority member not one has said to be found intertwined —not found allay supplied one word to the concerns to have been contemplated. expressed. which I If a then member only indication in the record as to any response cannot obtain Court what in way of damages was within the question opinion, raised whatever to a to an contemplation parties incep- at the poor practitioner expect? what itself, tion is the contract particular and in 8, 9, paragraphs agree- 16 of that ment. agreement, signatures minus AGREEMENT FOR SALE OF personal property descriptions, ap- FARMING PROPERTY *16 pended. Paragraphs 8 and 9 make the SUBJECT: vendee liable for waste and failure to main- Paragraph tain. 16 declares the vendor’s ELMORE COUNTY FARMING LAND remedies for uncured default: AND ALL WATER AND RIGHTS buyer If the fails to correct said default EQUIPMENT IRRIGATION within thirty-day period, said then the PARTIES: seller at option and without fur- DELBERT ther notice declare the CLAMPITT and DELSIE unpaid whole bal- CLAMPITT, wife, of husband and price ance said and immediately man, payable single due and GARY A. proceed and CLAMPITT once to Sellers, recover the same or declare a forfeiture buyer of all of the and and of all of its interest CORPORATION, A.M.R. an Idaho property, and to said retaining all corporation, Buyer. paid by buyer sums un- theretofore AGREEMENT, der the terms hereof as the SALES made this 11th reasonable occupation value the use and day July, of between DELBERT
South line of Quarter the Northwest Quarter the Southwest of said Section CLAMPITT, DELSIE hus- and CLAMPITT Twenty-one; thence North West 89°54' CLAMPITT, wife, A. and and GARY band along the South line of the Northwest man, is Box single whose address Quarter Quarter of the Southwest Hammett, Idaho, designated in hereinafter Twenty-one said Section a distance of singular gender as by masculine and feet; 112.2 North thence 44°50' West seller, CORPORATION, an A.M.R. and feet; 221.5 thence North 27°17' West corporation, whose address is Idaho feet; 444.2 thence North 13°22' West Avenue, Falls, Idaho North Water Idaho feet; 121.25 thence North 4°08' West 83601,,hereinafter designated buyer; as the feet; 210.2 thence North East 0°39' for and consid- That WITNESSETH: feet; 287.1 thence North 9°08' East Million Three of the sum Two eration 156.0 feet back to True Point of Dollars, Hundred Thousand Beginning. specified, and in consideration hereinafter PARCEL NO. 2 agreements herein and of the covenants Five, The West Half of Section East contained, agrees sell hereby seller Six, Quar- Half of Section agrees to Northeast buyer hereby convey and the ter of Section Seven and Northwest following real purchase the described Quarter Eight, Township all County Section property located personal South, East, Elmore, Idaho, Range Five Me- particularly Seven Boise State ridian, referred hereinafter to as follows: described as Property”. “Groefsema PROPERTY, as follows: described REAL PARCEL NO. 3 PARCEL NO. pump system The new installed already all of Sec- Twenty-seven; All of Section irrigation of the land described Thirty-one; All of Thirty; Section tion above, Parcel No. 1 including but Thirty-two all of Sec- All of Section limited to the following: Township Four Thirty-three, tion At the Station, River four hp 600 U.S. South, East, Boise Meridi- Range Seven Electric Company motors and Johnson an; pumps type 519-716, together with Five, Township Half of Section The East five Cook panels; electric East, Me- South, Boise Range Seven Five Station, At the Relift hp two 300 Vin- ridian. son Carter Electric Company motors Quarter of the Northwest portion That and Johnson pumps, together with of Section Quarter Southwest three Cook panels; electric and one South, Five Township Twenty-one, Kellogg compressor American air Meridian, East, Boise Range Seven panel. follows: bounded as Station, hp At the Pressure two Northwest corner Commencing at the Company Electric U.S. motors Quarter of the Northwest J519-718, pumps type togeth- Johnson Twenty- Quarter of Section Southwest panels; er with Cook electric South, Range one, Sev- Township Five Well, deep well Deep hp At the one 200 Meridian; thence East, South Boise en motor, No. pump and U.S. Serial line North along the East 89°54' *17 1376334,together panel. with Quarter the Southwest of Northwest PARCEL NO. Twenty-one Quarter said Section of irrigation, partic- All lines for more hand True Point 80.4 feet distance of upon the at- ularly described schedule continuing South thence Beginning; of A” and tached hereto marked “Exhibit feet; thence South 200.8 89°54' East part made a hereof. this reference feet; thence South 267.5 31°49' West NO. 5 PARCEL feet; thence South East 409.8 3°00' un- pipe All nature installed of whatever feet; thence South 328.3 22°36' East derground purpose for the of transmit- point to a on 473.2 feet East 36°19' 2. INTEREST. deferred balance purchase price of said shall bear interest ting irrigation point water from the of paid from the date of until place diversion to of use. per per at the rate of nine cent annum. PARCEL NO. 6 payment The first of interest shall be made All canals and ditches constructed for December, day or before 10th of transporting irrigation water Snake $250,- payment the time of the of at place pipelines River to of use or from to sum, upon principal 000.00 and the in- place of use. paid upon terest shall be thereafter day February upon 10th and the 10th 7NO. PARCEL day year, of December of each simulta- upon described listed and pumps All neously payment with the of the install- hereto, marked attached the schedule principal ment sum accordance made a reference B” and “Exhibit with the schedule set forth above. part hereof. 3. RIGHT OF PREPAYMENT. The way all ALL TOGETHER buyer may option pay any part all or trans- station or water pumping purchase price of said on or before the due per- together with all water and mission thereof, penalty, date without and interest wa- irrigation for the use of mits issued shall charged only upon principal be property above upon any of the real ter remaining balance from time to time un- described, together with the tene- and paid. ments, appurtenances hereditaments 4. ALLOCATION OF PURCHASE apper- anywise belonging or thereunto agreed PRICE. It is understood and subject patent reserva- taining, all but purchase price the total of Two Million record. visible or of tions and easements Three Hundred Thousand Dollars is allocat- buyer, 1.PURCHASE PRICE. The being paid parcel ed to and for each premises, agrees consideration of the forth, property as set on the schedule at- pay personal to the seller for said real and hereto, tached marked “Exhibit C” and property the said sum of Two MillionThree part this reference made a hereof. Dollars, payable Hundred Thousand at the 5. All PLACE OF PAYMENT. of said times and in amounts as follows: paid by deferred shall be $10,000.00 The sum of prior or at the buyer to the seller at the Idaho First Na- time of the agreement, execution of this Home, Idaho, tional Bank in Mountam receipt hereby of which is acknowl- which designated said bank is as escrow seller; edged by the provisions agree- holder under the of this $250,000.00 The sum of on or before the ment. December, 1974; day 10th AND WATER TAXES PUMPING $250,000.00 The sum of on or before the pay agrees CHARGES. The seller 1975; day February, 10th discharge unpaid pump- all water taxes and $89,500.00 The sum of on or before ing charges and maintenance levied or as- December, 1975; day 10th against sessed said or incurred $89,500.00on or before the The sum of year therewith connection 1976; February, day 10th pay prior years. buyer agrees all $89,500.00on or before the taxes, The sum of charges main- pumping all water December, and a like day 10th against charges tenance levied or assessed day of Febru- or before the 10th sum on said incurred in connection each ary day 10th December of year and all subse- therewith for the pur- every year quent buyer pay thereafter until said years. If the fails by it price, together agreed with the interest chase taxes or assessments herein mentioned, paid delinquent, go has been hereinafter before same buyer in default seller declare the full. *18 matured, until after the seller has harvest- crops ed and removed during year said agreement, after the this the terms of mentioned, may possession after which . crop or notice as hereinafter any payment irrigation system deemed land and make option his be deliv- shall the title to necessary protect to buyer, being ered to the him to be understood that sold, any pay- such and property units, the herein operating the consisting of motors considered by the seller shall be ment made pumps, and used in connection with the unpaid purchase price the portion as a irrigation system will be turned over to the of nine at the rate bear interest and shall buyer in operating buyer condition. The pay- the date of per annum from per cent shall be possession entitled to the any buyer and the by the repaid ment until part of said property planted real with upon de- same agrees repay to the buyer crops immediately upon the execution of seller has that the mand. It is understood and posses- continue in with Idaho a service contract entered into sion property long buyer of said so as the of obtain- Company purpose Power complies agreement. with the terms of this operate to power with which ing electric irriga- pumps for motors and Any the electric buildings perma- WASTE. or terms of that under the purposes tion and improvements placed upon nent said real guaranteed the seller has said contract property by buyer part shall become a minimum Company a to Idaho Power pay property of said and shall not be removed. hereby as- buyer The payment. annual buyer The covenants to commit no waste said obligation under sumes the seller’s premises permit said and to no waste January commencing agreement, service be committed others and further cov- annu- minimum agrees pay and enants keep property said free and clear required by said payment as al liens, of all mechanics’ materialmen’s liens thereafter, year and each year every and all other liens of kind nature charges, if additional together with such whatsoever, save except and current taxes contract, and by said required any, as are and the liens herein mentioned. indemnify hold the and buyer agrees to 9. CARE liability OF further PROPERTY. re- from all After harmless seller ceipt possession same, electric Company buyer Idaho under said Power agrees keep up that It is understood and maintain contract. all of said service personal Ida- real seller with and property good made money deposit purpose of condition as the Company for same was at the Power time of ho service the delivery for electric payment personal said real and guaranteeing prop- erty, the seller belong to or may placed, 1974 shall year hereafter be natural {ear such in connection wear and ordinary refund from the and use there- Any the seller. paid excepted. deposit shall be Company Power required by Idaho deposit ac- buyer WARRANTIES. 10. NO pay- guaranteeing and thereafter for 1975 real inspected the it has knowledges that buyer. ment shall agreed to be hereby property personal and that understood It is 7.POSSESSION. and the same the condition sold knows upon a planted crops seller now has present condi- in its accepts said de- property above the real portion of relying it is acknowledges that tion and title to scribed; retains the the seller toas own officers of its judgment upon the right to con- crops and shall have said of said value the condition crop lands of said possession tinue in made has the seller acknowledges that purpose system for irrigation proper- concerning said representations crops harvesting the 1974 maturing and contained representations except the ty, prop- real from said removing the same agreement. system irrigation erty. Possession OBLI- CONTRACT 11. EXISTING planted with the lands equipment understands buyer buyer GATIONS. delivered to not be crops shall *19 agrees
able and the seller pay and dis- purchasing charge the seller is property prior the real the same in full to the time above, described as Parcel No. 1 buyer completes from In- payment pur- of the Company, corporation, termountain Gas price required chase under the terms of in writing August under contract, dated so that the seller will then be 24, 1973, payable which contract is over a position in a convey marketable title to period years, buyer having with the all of said to the buyer in accord- right prepay any part purchase provisions ance with the agreement. of this price any buyer time. The further un- If the pay seller fails to any of the install- derstands that under the terms of the In- ments required any said Company termountain Gas sale contract contracts or land sale certificates at the Clampitt the seller agreed has assumed and time the same become due and before the pay State of Idaho Land Sale Certificate same delinquent, become then pur- covering No. 24140 the East Half of Sec- pose protecting equity its proper- said Twenty-seven, South, tion Township Four ty buyer may option any at its make Range East, Meridian; Seven Boise State payment deemed itby necessary to be of Idaho Land Sale Certificate No. 24141 protect rights under its this contract and covering the West Half Twenty- of Section payment buyer such made shall seven, Township South, Range Four Seven upon purchase price be credited to be East, Meridian; Boise State of Idaho Land seller, principal to the either of Sale Certificate No. covering interest, agree- under the terms of this East Half of Section Thirty-two, Township South, upon Range East, Four ment. Such credit shall be entered Seven Boise Me- ridian; the escrow herein- State of Land records of holder Sale Certificate No. covering upon delivery by buyer after West Half of mentioned Section Thirty-two, South, Township duly Four to the holder of a executed Range escrow East, Meridian; Seven Boise receipt showing payment State of Idaho such to have been Land Sale Certificate covering No. 24138 buyer for or in behalf of the made the East Half of Thirty-three, Section seller. South, Township Range East, Four Seven agrees ESCROW. seller at the Meridian; Boise State of Idaho Land Sale agreement time of the execution of this Certificate No. covering the West place in escrow with the Idaho First Na- Thirty-three, Half of Section Township Home, Idaho, tional Bank at Mountain South, East, Range Four Seven Boise Me- warranty deed standard form executed ridian; State of Idaho Land Sale Certificate conveying buyer the seller and to the covering No. 24136 the East Half of Sec- marketable title to the real property above- Thirty-one, South, tion Township Four described, subject to the reservations here- East, Range Meridian, Seven Boise contained, together with a bill of sale in State Land Sale Certificate No. 24137 cov- conveying buyer standard form to the mar- ering the East Half of the West Half and personal ketable title to the Four, property above inclusive, Lots One to of Section Thir- described, subject provisions of this ty-one, South, Township Range Four Seven East, agreement. hereby escrow Said holder is Boise buyer Meridian. The further authorized and directed to deliver said in- understands that purchasing the seller is buyer upon depositing struments to the the real described Parcel No. 2 in said bank to the credit of the seller the above from Christine Groefsema et al un- purchase price writing der a sale contract in deferred above dated March interest, agreed speci- 1974. It is that it mentioned with at the times shall be the above, obligation upon compliance seller to continue fied to make hereof; payment falling due the land sale other terms and other- conditions wise, certificates sale contract said escrowed instruments shall be above-de- scribed, paid, copy or to see that the same are returned to the seller. An executed and when the same pay- deposited become due and of this shall be
16. REMEDIES FOR DEFAULT. agreed Time is to be of the essence of said as escrow holder and shall be said bank agreement and of this any and of and instructions to it with refer- directions agreement subsequent in relation hereto ence to the terms conditions hereof. performance and full by the buyer of all its All escrow 13. ESCROW FEES. fees obligations hereunder is and shall be a con- by be of said bank shall one-half the precedent right dition to its convey- to a buyer. and one-half the seller ance hereunder. In the buyer event the PERMITS. It is under- 14. WATER comply fails any with of the terms here- applications have that certain been stood of, seller, through then the said escrow Department the Idaho of Water made to holder, give shall first buyer thirty the appropriation the of wa- Administration for days’ writing notice in specifying wherein irrigating the land above ter for use buyer the comply has failed to with the described, necessary in and that it will be terms hereof and which said notice shall be Depart- Idaho the future to file with the buyer delivered to the personally may or proof Administration final ment of Water mail, by registered sent to it or certified put that said water has been to beneficial buyer addressed to the post at its last use, permanent license order to obtain office address as furnished to the escrow A list of said the use of said water. mail, If holder. sent said notice shall be permit number and permits showing the buyer upon deemed served proof of final the date for submission hereto, deposited marked date it beneficial use is attached in the United States by this reference made a “Exhibit D” and postage mails with prepaid, certified or it shall part It is understood that hereof. registered and addressed as above men- buyer to submit obligation be the buyer If tioned. fails to correct said water at the beneficial use of said proof of thirty-day period, then within said default due and the seller time the same becomes may option at its and without seller assign buyer agrees upon demand of unpaid declare the whole bal- further notice permit buyer any water for which immediately purchase price of said ance use is to be made. proof of beneficial once to payable proceed due and INTEREST. It is un- 15. SECURITY or declare forfeiture recover the same security that the seller retains derstood buyer this rights all of hereby personal property interest in the in and all of its interest agreement and of to said and that title agreed to be sold retaining all sums thereto- property, to said be and remain personal property shall terms buyer under the paid by the fore with in- purchase, the seller until said value for the use the reasonable hereof as terest, evidence paid in full. As has been during the of said occupation seller, upon request of the of such lien and same is retained possession of the time that and deliver to buyer agrees to execute hereunder, or the seller buyer by the financing under the statements seller equity or at bring action option an at its Code of the State Uniform Commercial damages. performance specific law for UCC-1, Idaho, to be filed designated as continu- evidence of the seller’s record as In event FEES. 17. ATTORNEY’S personal prop- in said ing security interest par- necessary for either of the it becomes buyer to com- fails erty. In the event agreement place ties hereto agreement and it of this ply with the terms attorney for enforcement of of an hands seller to fore- necessary for the becomes rights hereunder for the default their interest, seller then the security close its party institute suit for en- the other or to by fore- rights either may exercise its hereunder, then of their forcement provisions with the in accordance closure par- defaulting party, or the successful pre- method agreement suit, recov- shall be entitled to ty in case Code by the Uniform Commercial scribed attorney’s fees from the oth- er reasonable of Idaho. State party, er addition to the other
allowed law.
18. HEIRS AND ASSIGNS. The terms conditions of this shall ex- heirs, binding upon
tend to and be
administrators, assigns executors and *21 respective parties hereto. WHEREOF,
IN WITNESS par- the said
ties have hereunto day set their hands the year first above writ-
ten. Clampitt
/s/ Delbert Clampitt
Delbert Clampitt
/s/ Delsie Clampitt
Delsie Gary Clampitt
/s/ A.
Gary Clampitt, A.
Sellers, CORPORATION,
A.M.R. an corporation,
Idaho
By
Buyer. P.2d 56
In the Matter of Roderick Wade
SNYDER, Deceased: SNYDER, Claimant-Appellant,
Tamara INC., LANGE, Employer, and
BURL C. Wausau,
Employers Insurance
Surety, Defendants-Respondents.
No. 15076.
Supreme Idaho. Court of
May 1985.
Rehearing Sept. Denied Chenoweth, Orofino, claimant-
Nick appellant.