McMullin v. Shimmin
349 P.2d 720
Utah
1960
Check Treatment

*2 ANDERSON, District Judge. complaint Plaintiff’s was dismissed at the pre-trial conference. He sought spe- performance complete cific or subject property after made a written offer depositing money. thereon Plaintiff $100 appeals. signed a uniform

Defendants Earnest Money Receipt Offer to Purchase the accepted Plaintiff property. real offer. says defendants Plaintiff breached its complete refusing purchase. terms deny any liability. They paid Defendants inception plaintiff of the $100 con- of- an tract, or here is one which includes plaintiff never returned specific performance, lat- action months Four fered same. to return the election as performance, recognized this court specific er sued for inci- controlling Andreasen case could not be a praying in the alternative precedent after here. It is true Three months dent here, specific performance, or commenced, calling plaintiff sold action was court else pre-trial for the this fact property At others. distinguishable failure complaint for from the case. plaintiff’s dismissed not, earnest We are upon de- called return to return or offer termine a only prayer situation where the money prior suit. for relief is based is whether principal issue alone. problem We will meet that when controlling. Hansen1 and if it arises. case and Both real sale of had to do with the Where, chose to vehicle receipt an earnest to another sell after commencing suit contains receipt Each its consummation. specific performance, equitable lost *3 following: the claim. As the claim damages, for fails purchaser the “In the event option meets the clause of the contract purchase the of said pay the balance limiting recovery to the of amount the as complete said price or deposit. here- paid the amounts provided, herein seller, be shall, option of the the The only question to whether dam- agreed and liquidated retained as limit applies is whether or the not ages.” option has been option exercised. Such money was re- the both cases In pay exercised retention of the down seller. by the tained parties ment. The clause tells the that the only need retain seller the to exer in sum acknowledges that The right keep his it. cise The seller chooses it was held that where the language. deposit His the retention mean retention of the a becomes has been there buyer when he claims seller, ingful will not lie for an action re- by contract breach of the con- breached the covery go refuses of through that inasmuch with it. urges, He tract. 404, 370,

1. 8 Utah 406. 349 P.2d 722 that is obvious Under the facts conse- the seller claimed a DAVIS COUNTY BOARD OF EDUCATION deter- quently seems For the ANDERSON Use and of Benefit COMPANY, corporation LUMBER Utah “The minative, that wherein it was said , Respondent, Plaintiff and incon- kept fact that was ex- plaintiffs trovertible that the evidence Defendant, Loyd UNDERWOOD, J. being That option keep it. ercised Hartford, Company kept it Phoenix Insurance of so, they deemed to must be Connecticut, corporation, a Connecticut contract, purpose indicated Appellant. Defendant and is, damages.” liquidated that that suit The exculpate filed would was money where back the paying from Feb. sought is for the relief mutually ex are remedies alternative. plain therefore, logically,

clusive, and im legal all of be bound

tiff must

plications his claim of of of retention By virtue ruling in

deposit and the inescapable the cause seems with damages must be treated been filed it had respect than if greater

no specific performance. joinder

without prop- complaint was appears

It affirmed,

erly dismissed defendants. costs J., WADE and

HENRIOD, JJ-, concur.

McDonough, justice. my dissent in see.

I dissent: 370, 377, 335 P.2d Hansen, 8 Utah

404, 409.