Wayne C. CLOSE, Plaintiff and Respondent, v. Harold G. BLUMENTHAL and Virginia A. Blumenthal, Defendants and Appellants.
No. 9196.
Supreme Court of Utah.
Aug. 12, 1960.
354 P.2d 856
Inasmuch as plaintiffs’ intent in this matter was made known to the trial court and this court, their desire to yet amend and properly plead a condemnation action results in no surprise or substantial prejudices to the defendants. The issues are related to the allegations of “easement by implication,” so it could be joined in the same action. However, the trial court might desire to defer the actual trial on the condemnation issues until the other issues are settled.
Summary judgment as a remedy should be granted with great caution. Care should be exercised so as not to cloud the visibility as to just what issues are alive between parties. Summary judgment, as was granted in this case, may appear at first to be with prejudice as to the plaintiffs’ alternative desire to acquire by condemnation, yet facts on which such a right to condemn the path marked GJEDCB would depend on are unsettled and contested. Actually, the plaintiffs have not yet asked that--their alternative desire be formally considered. Memorandum decisions by the trial court can often eliminate the consumption of time involved in litigation.
Case is remanded to the court below for action consistent with this opinion. Cost to the appellant.
CROCKETT, C. J., and WADE, McDONOUGH and CALLISTER, JJ.
HENRIOD, J., having disqualified himself, did not participate herein.
A. M. Marsden, Glen S. Hatch, Salt Lake City, for appellants.
Dallas H. Young, Jr., Provo, for respondent.
CROCKETT, Chief Justice.
On the 28th day of April, 1959, at Provo, Utah, defendants Harold and Virginia Blumenthal, in connection with buying a home, signed a document entitled “Earnest Money Receipt and Offer to Purchase,” which was also signed by the plaintiff, Wayne C. Close,
The language of the agreement pertinent to the issues here involved is:
“In the event the purchaser fails to pay the balance of said purchase price, or complete said purchase as herein provided, the amounts paid hereon shall, at the option of the seller, be retained as liquidated and agreed damages.”
The plaintiff did not return, nor offer to return, the $500 before commencing this action.
The question here is whether he can thus retain the money advanced and also get specific performance of the agreement.
This Court on two occasions recently has ruled that under earnest money agreements containing clauses identical to the one quoted above, where the buyer failed to complete the purchase, the sellers could not retain the deposit and also recover damages, Andreasen v. Hansen, 8 Utah 2d 370, 335 P.2d 404; McMullin v. Shimmin, 10 Utah 2d 142, 349 P.2d 720. It was held that where there was an option to be exercised regarding the forfeiture of the deposit as liquidated damages, the fact that the money was kept was incontrovertible evidence that the seller had exercised the option to keep it; and that being so, he was deemed to have kept it for the purpose indicated in the contract, that is, as liquidated damages. We are now asked to come to a different conclusion because of the fact that the plaintiff here is seeking specific performance instead of damages, but we see no rational basis for doing so.
In regard to earnest money receipts of this character, it is pertinent to observe that the attempt to enforce this clause of the contract is almost invariably against a purchaser who has been induced to sign it and deposit money under the impression that its forfeiture will be the extent of his loss if he decides not to buy the property. And the suit is by a seller who wants to be sure to keep the money in hand, and also seek additional relief. This clause is for the benefit of the seller. He will obviously always choose the option to his advantage and to the disadvantage of the buyer. Under those circumstances the clause should be strictly applied against the seller and he should be held to meet its requirements with exactness.
It is further to be kept in mind that specific performance is an equitable remedy. Such remedies are usually granted in lieu of legal relief only when the latter would be inadequate. Accordingly, a court of equity will not look with favor upon a claim for relief beyond the amount of money which the contract recites the seller may
Reversed with directions to enter judgment for the defendants. Costs to defendants (appellants).
WADE, HENRIOD and CALLISTER, JJ., concur.
MCDONOUGH, Justice (dissenting).
I dissent. I can see no logic in requiring the plaintiff to pay or tender $500 and then sue for $25,500. See my dissenting opinion in Andreason v. Hansen referred to in the main opinion.