Stеphan R. ELIASON and Marilyn D. Eliason, husband and wife, Plaintiffs, Respondents, and Cross-Appellants, v. Richard C. WATTS and John A. Kerr, partners, dba K. W. Development, a partnership, and Jan Watts and Barbara Kerr, as Individuals, Defendants, Appellants, and Cross-Appellants.
No. 16402.
Supreme Court of Utah.
July 14, 1980.
427-431
It is true that in granting defendant‘s motion for attorneys’ fees, the trial court recited “for good cause shown.” But that is merely a conclusion, without any finding of fact which would bring the plaintiff‘s conduct within the rules just stated above. Moreover, no such finding would be warranted where the plaintiff merely stated its position and initiated this action for determination of what appears to be a justifiable controversy. It would not comport with our ideas of either law or justice to prevent any party who entertains bona fide questions about his legal obligations from seeking adjudiсation thereon in the courts.11
There being no foundation for the award of attorneys’ fees to the defendant,12 that portion of the judgment is vacated; and with that modification, the judgment of the trial court is affirmed. No costs awarded.
MAUGHAN, WILKINS and HALL, JJ., concur.
STEWART, J., concurs in result.
David R. Daines, Daines & Daines, Logan, for plaintiffs, respondents, and cross-appellants.
STEWART, Justice:
This appeal is from a judgment granting specific performance and rental-value damages of $8,200 for the period defendants had failed to perform according to the terms of an “Earnest Money Receipt and Offer to Purchase” real property.
On apрeal defendant argues that the terms of the contract were unclear and the contract itself was ambiguous. He contends it was error for the trial court to order specific performance under such circumstances. Defendant also challenges the court‘s award of damages, contending that if this Court affirms the order below, damages should be limited to actual out-of-pocket losses, or, if rents and profits are determined to be the proper measure of damages, there should be an offset in thе amount of interest on the full purchase price.
Specific enforcement of a contract depends on whether the obligations of the parties are set forth with sufficient clarity and definiteness that the contract can be performed according to its terms. Ferris v. Jennings, Utah, 595 P.2d 857 (1979); Pitcher v. Lauritzen, 18 Utah 2d 368, 423 P.2d 491 (1967). In the present case, defendant contends that the contract was unenforceable because (1) no date was given for the payment of the balance due, (2) the description of the property contained inaccuraсies, (3) the buyer did not give a bid on carpet installation as part of the price, as set out in the offer to purchase, (4) the offer was subject to the buyers’ obtaining a septic tank permit, and no permit was issued, and (5) there were omissions regarding improvements, сlosing date, and commission. Since the trial court found, contrary to defendant‘s position, that the terms of the contract were sufficiently complete and clear to justify a decree of specific performance, its judgment will stand if it has substantial suppоrt in the record. Brady v. Fausett, Utah, 546 P.2d 246 (1976).
The trial court found that the contract was definite and certain in its essential terms and that “the contract wording and the understanding of all parties was clear as to all of the essential contract terms including the identification of the speсific land to be sold, the purchase price, and the time for conveyance, and the parties knew the exact tracts of land to be transferred and the purchase price.” The court also rejected defendant‘s contention that substantive рarts of the contract had not been complied with and found that those were contingency provisions that were “outside of the contract.”
The contract of purchase dated October 4, 1976, contained a handwritten statement above the pаrties’ signatures that the sellers would “accept the [offer] above” at the price of $30,000 for lot # 4, with an option on an adjacent lot, until March 1, 1977. The trial court correctly found that the plaintiffs’ tender of cash for the amount of the purchase price was sufficient performance on their part and that plaintiffs were not required to bid on carpet installation as part of the purchase price as allowed by the contract.
As to defendant‘s contention that the property description was ambiguous, the record supports the finding that the property to be conveyed was clearly identified. The contract contained the following descriptive terms supplied by defendant‘s partner or agent Fife: lot # 4 with option on land immediately behind apрroximately 208′ × 165“, located at approximately 1860 No. Main in No. Logan City, Cache County, Utah. The court accepted parol evidence to establish a metes and bounds description of
In Nielsen v. Rucker, 8 Utah 2d 302, 333 P.2d 1067 (1959), this Court affirmed a decree of specific performance for the sale of the “dairy farm owned by Glen Nielsen and wife.” The appellants had argued that the property was insufficiently identified, since the instruments of conveyance contained descriptions of only three of the four tracts constituting the Nielsen Dairy Farm. An escrow agreement with an obvious scrivener‘s error was introduced into evidence to establish the correct description of the farm property, and the Court ruled that the identity of the property was sufficiently definite for specific performance. In Cummings v. Nielson, 42 Utah 157, 129 P. 619 (1913), this Court relied on the doctrine that “in equity that is certain which can be made certain” and held that specific performance may not be prevented by uncertainty in the description of property, if the land intended to be conveyed is identified by extrinsic, parol, or documentary evidence. The trial court in the present case properly determined on the basis of parol evidence that there was no ambiguity as to the рroperty to be conveyed, regardless of the scrivener‘s error.
Defendant argues that the issuance of a septic tank permit, as part of plaintiffs’ offer, was an important part of the contract that would have benefited him as well as plaintiffs and that the court erred in granting specific performance when plaintiffs had not obtained the permit. The trial court stated that the septic tank provision was outside the contract. However, the terms of plaintiffs’ offer were accepted by defendant, and one term was that the buyer obtain a septic tank permit; that term was part of the contract.
Nevertheless, even though the installation of a septic tank might constitute an advantage to defendant as the owner of nearby property, the mеre acquisition of a permit, as required by the contract, was of no value to defendant. The failure to obtain a permit does not deprive defendant of any valuable right. The provision was added to the contract by plaintiffs, and the condition was clеarly for their benefit in putting the property to its desired use. It was the plaintiffs who were entitled to demand the benefit of that condition, and if they chose to waive the condition, it was within their power to do so. Ahrendt v. Bobbitt, 119 Utah 465, 229 P.2d 296 (1951). Their tender of the full purchase price evidenced such a waiver.
Finally, defendant challenges the award of rental-value damages. When specific performance is granted, it is the obligation of the courts to evaluate the equities of the parties and to formulate a remedy that seeks to plаce the parties in a position as similar as possible to that which they would have been in had the conveyance been made according to the terms of the contract. The standard for determining the proper compensation to the pаrties was stated in Ellis v. Mihelis, 32 Cal.Rptr. 415, 60 Cal.2d 206, 384 P.2d 7 (1963), as follows:
The guiding principle with respect to the calculation of the damages incident to the decree of specific performance is to relate the performance back to the date set in the contraсt. Timely performance of the contract would result in the purchaser receiving the rents and profits of the land but being denied the use of the purchase money, and a purchaser who seeks to recover rents and profits must permit an offset for his use of the purchase funds during the period that performance was delayed. In an early case this court held that a defendant in a situation like the one before us should be permitted to offset against the profits interest on the entire purchase price. (Heinlen v. Martin (1879) 53 Cal. 321, 343.) This holding is thе overwhelming weight of authority. [Citations omitted.]
See also In re Bond & Mortgage Guarantee Co., 271 A.D. 44, 62 N.Y.S.2d 685 (1946), app. denied 296 N.Y. 824, 72 N.E.2d 15;
Following the general rule, when specific performance is ordered and a plaintiff seeks an award of lost rents or profits, the vendor who wrongfully withholds conveyance of property is entitled to credit for actual interest earned on the purchase money retained by the purchaser, if any. The seller in default may not, however, profit from his own wrongdoing and therefore will not be awarded any excess of interest over rents and profits. Pearce v. Third Ave. Improvеment Co., 221 Ala. 209, 128 So. 396 (1930).
In the present case, defendant‘s refusal to convey the property was found to be “wrongful in that it was in contravention of the contract but it was not willful or malicious so as to entitle plaintiffs to punitive damages.” The usual rule of credit for purсhase money interest against rental value should therefore be followed in adjusting the equities between the parties based upon their position had there been a timely conveyance.
Plaintiffs have attempted to cross appeal from the аward of damages, alleging its inadequacy as a matter of law. However, they have failed to comply with
Remanded for further proceedings to determine the amount of plaintiffs’ rental-valuelosses as offset by interest on the purchase price. Costs to Respondents.
CROCKETT, C. J., and WILKINS and HALL, JJ., concur.
MAUGHAN, Justice (concurring and dissenting):
With one exception, I concur with the judgment of the Court. That exception is with the dismissal of the Cross-Appeal for failure to comply with
Where, as here, the appellant brings up the whole record, and specifically makes the issue of damаges one of his points on appeal, I see no reason why the respondent should not be free to cross-appeal on the issue of damages. The issue of damages comes as no surprise to the appellant.