*1 the next morning, and the time involved any people might who have been
around, and determine from that whether
they were .taken if so who took may
them. You consider that as some subject.
evidence on Any ques-
tions ? quite
Such statement was consonant with
the facts adduced, and a sort of facetious running
covenant with the land. objected,
Hansen’s counsel claim
ing a) such instruction have
been writing, which, failing it violated
Rule Procedure; Utah Rules of Civil
that even so it erroneously b) stated the
law, which latter contention we dis —with agree comment, particularly when
read along with other given. instructions above,
In a) where the instruction or an question
swer to a not, jury, silly given jury retired, has Rule 47 after (n) governs, where, U.R.C.P. here, as jury “to be desires informed on
point of law . . Such information
must writing or taken down by
the reporter.” reporter took it down.
The court was error pro- under the
cedure instruction mentioned. and/or
CALLISTER, J., ELLETT, C.
CROCKETT and TUCKETT, JJ„ concur. Marilyn Eckard,
Cecil O. ECKARD and F. Respondents, his wife, Plaintiffs
Gale G. SMITH and T. Smith, his Appellants. Defendants and
No. 13567. Perkins, Perkins, of Turner & Richard W. Supreme Court of Utah. City, defendants-appellants. Salt Lake Oct. Faber, Lloyd, Jr., and David P. Walter Faber, City, for Lake Salt Watkins plaintiffs-respondents.
ELLETT, Justice: below appeal is from This to -con- ordered whereby were the Smiths *2 cost, duplex original depreciation, in a it mean cost less the two vey one units replacement or cost? it is the Eckards. Since not clear jointly by them to owned meant, not en- what was the court could in unit resided the for had The Eckards agreement force the it chose a value until of a Residen- printed form year under proper; to the seemed it could which signed by them- Agreement tial Rental itself. agreement not decide it from the and Mr. Written selves Smith. problem presents A more serious itself following additional were the printed form buy option the use of the words “first to terms: [******] said mination duplex, of lease period.” available at ter- hereby agrees grant to Lesser 4. [sic] In In the Tamura DeIuliis2 case of (Cecil option buy first to Eckard) lessee the court said: if availa- duplex, single unit or both said Furthermore, period. the fact lease at termination of ble plus option the lessee the first car- was to have price (78,900.00) sale shall buy par- indicates to our mind that the pets, landscaping costs. drapery & [*******] ties whereby if contemplated the owner receives an the usual situation offer lessee, per- party, from a third the or the yrs. payment will 6. The entire option buy, son shall the first price to sale if leassee be credited [sic] right have a to meet such bona fide purchases duplex. said party. offer of the third . . term, expiration Prior the of the the matter, In the instant it made no differ- Eckards demanded that both Mr. and Mrs. price might ence what the offered be from convey to them the unit which Smith person; buy a third the lessee could living had been for one half of $78,900.00, property if the was available etc., carpets, plus the amount less for sale. paid year. of rent for the duplex wonders if one half is One of a case of v. Evona Our Utah Chournos
worth half as as the entire unit one much opportunity a “first Inv. Co.3 involved walls, would be worth. Common common upon premises, the the purchasing said roof, etc., likely depreciate half would each price lessor re same and terms the so remaining might that the unit not sell parties.” page This court ceive other Realty for as much as the first unit did. Reports said: 340 of the Utah always has unique, been held to be and one lease, Company bound itself By the unit of a is different from the oth- opportunity purchase to extend an er north-facing : Be it a or a south- unit lessees, Company re- when and if the west-facing facing one or an east- or prop- acceptable for the ceived an offer unit, difference, each would have some However, provision erty. . . . say we cannot that the two would be alone, lease, and without standing equal say they value. To is to would be consti- Company, did not action make a contract which the never option in favor the lessees. tute an only reading get made. The can one out is instrument that for one Popper4 a lease con- Falkenstein v. In 1 “ two the “($78,900.00).” sale shall be For (b) . . following: . tained term, . . . remaining period of said ambiguity regarding There is also “car- opportunity pets, given the first drapery landscaping Lessee shall be costs.” Does (1955). sign affixed, party 472 1.While is neither 2. 281 P.2d no dollar 203 Or. anything than claims means (1939). P.2d 450 93 97 Utah $78,900.00. (1947). Cal.App.2d P.2d 4. 81 707 ” eliminated, privilege to that word purchase The lessee under- buy (b), and would be absolute and enforceable. took to exercise the under said, in sub- “ the court lessee opportuni- first (b) division authority there is weight of where ty during the event that a “first nothing more to the effect that is term, of the leased the lessor de- balance buy” op- merely a conditional *3 cided to sell.” owner only be exercised in case the tion to provision Reising5 a desires to sell. In lease Stein given first was as follows: “Lessee will be meaning The of the word “available” option purchase property year within Does it subject to two constructions. also $8,000.00.” lease if in effect at a somebody else” or does mean “not sold to that by It was there held the court latter, the it “if it is for sale”? If mean “ Mr. only it could be said that exercised, the option since there is no to be preferential and Stein had a conditional or it sell. If means owner does not wish to purchase the not an absolute the former, appears clearly that the then it building.” option because Eckards had no firm The case of Burback v. Sinram6 is selling it to by the could be defeated owner option con- like effect. The court held the another. upon to sell. ditional the lessor’s desire enforced con The trial court Realty case of R. I. Co. The New York Spe parties the never made. tract which There the leading v. Terrell7 is a case. granted be unless performance cannot cific buy” privilege “first lessee was clear, clarity must and that the terms are The court
property price. for a stated language used be found from the said: document.8 privilege” “first The of the words use why the There is a further reason had parties must have indicates the be The de cannot affirmed. opportunity of the in mind some joint owner of fendant T. Smith was not to sell and that the lessor lessor the nor signed the land. neither She if he prevented selling to another from only estoppel option. the so-called however, lessor, the desired. It bound her would against which could be asserted price with- another not sell to for the Eck- agreement be the lease for which opportuni- giving the lessee the out first complaint paid cash. makes no ards She purchase property ty privilege to the that, their full about as the Eckards had . The price specified, at the cannot, peaceful possession. term of She grant an privilege” did not words “first however, deprived of her title to the lessee to absolute to the the realty provisions of in view of the the premises during time the at Statute Frauds.9 les- right of the term the lease. The the les- purchase depended upon see to by construe the desire to To a sale
sor’s
sell.
The dissent mentions
with the conten-
the clause
accordance
of one of the units
to the Eckards
Smiths
require that
respondent
re
tion of the
would
Both
have
subsequent to trial.
at
presented
the word “first” be eliminated. With
quested
decide the issue
us to
(1949).
804,
Lauritzen,
80
5.
Mo.
224 S.W.2d
8.
2d
423
359
Pitcher v.
Utah
18
;
Reyburn,
(1967)
115
491
Bowman v.
P.2d
(1924).
6.
The the entire whole week their Eckards rental before filed Notice 10, 1974, both, they Appeal did of on January advance. It seems obvious that Smith, this opportunity to assure an Gale G. Smith and T. executed property, is apparent (and signatures since there no had their notarized on said reason why they forego on a date) Warranty interest Deed for “One-half ½ $4,500.00 Begin- when under the of of a as follows: terms described lease, option, they point a ning without the . . could have thence paid out monthly installments party Centerline wall $375.00. court, evidence, point trial under the begin- found thence liability a binding convey ning.” Warranty duly contract This Deed was de- accepted by the Eckards livered check for for a certified exchange
them ASSOCIATION OF INTER MOUNTAIN corporation, MEN, a Utah by both CREDIT accepted and endorsed $37,744.00, Appellant, Plaintiff and doubled, defendants, amount which half one $75,488.00. Adding equal corpora- INC., VILLAGER, a Delaware payment, $4,500.00 advance (½) of the Inc., Industries, Villager cor- tion, $75,488.00, $2,250.00to the which would Respondents. poration, Defendants $78,738.00,- get except you what do —which No. 13377. exactly stipulated almost in the Res- duplex found for the Supreme Court Utah. fig- Agreement ? These idential Rental Oct. the court belie findings ures and the “The opinion that statement of the main which the
trial court enforced contract quoted made,” although the never — to Mrs. Smith statement would be true as she only, further be assumed —-if representations as to not her bound agreement,
satisfaction in the terms of the however, court, trial did
—which the appear that
assume at all. It would
their eliminated de- actions the Smiths estoppel; contrary,
fense of completely waived it ratified Eckards,
terms asserted which were exactly as fi-
enforced the court almost
nally could be argument consummated. No part this not a
urged all
record, put it in the because the defendants
record, they appealed. (Emphasis —before added.) strange
It would be conclusion both procedure administering
the area of and of
equity, complied people, after very
with the terms of entered
against them could consummate the trans-
action which the court had found to be the
fact, thereafter, by simple but device of
filing timely appeal notice of could call game. It claim a brand new ball
is obvious that and is this whole case was
moot, at- unorthodox and abortive —an tempt jurisdiction to invoke the and con-
sume, merit, the time of the courts.
The trial affirmed court should be with
costs to the Eckards.
TUCKETT, J., ex-' concurs the views
pressed dissenting opinion of HEN-
RIOD, J.