*1
would other Supreme Court of Utah. Jan. plaintiff made trial court property; sell the made efforts to reasonable mandatory a make
nor is it such as to prop- lost collusion
finding that she deprive the defendant
erty purposely to partiсipation it. is in proceeding divorce evidence, may review the this court lati indulges considerable
but nevertheless findings and determina favor of
tude in court, will not
tion pre the evidence unless therewith
interfere findings, a mani his
ponderates against inequity wrought.2 injustice or
fest respondent. Costs
Affirmed. J., WADE,
CROCKETT, C. McDONOUGH, JJ., con-
WORTHEN
cur. disqualified
HENRIOD, J., having him- herein. participate
self, does
Wilson,
Utah 2d
George M. Brigham City, Joseph Foley, Ogden, appellants. for C. Mann, G. Merrell, Walter Ida Brigham respondents. City, for WADE, Justice.
Plaintiffs, Mr. and Mrs. Nielsen, re- here, defendants, sued spondents Mr. and Rucker, specific performance for Mrs. of a exchange the Nielsen Dairy contract Farm, City, north of for Utah, home, fourplex apartment Ruckers’ Tremonton, mortgage, mortgages Utah. The house, tо take motel home, fourplex motel and from the Nielsens specific performance. decreed court repay assumption the dif- such if contending appeal, The Ruckers re- against ferences indebtedness is upon, it agreed contract was there spective properties. supple- Under this enforced to be and uncertain too indefinite agreement agreed mental the Nielsens performance. specific pay mortgages per аt the rate of $150 awkwardly writ- original contract month. The was “Earnest entitled form duly ten on a real signed by parties. executed and both Purchase.” Receipt and Offer Money Nothing was said in such about purchase agreed Under when mortgage of the chattel was properties respective price of which the Ruckers to assume was Rucker against $95,000, awith due or when the required Ruckers would be a lien $19,000,and property it, about pay they there is evidence that impression the Nielsen were under the could monthly paid in was to pay The difference it off at the per month, rate of $175 liens clear party to Each that they installments. did not know until about the 3rd *3 by such given personal the April, 1957, from of that this mortgage became was exchange. party the 1, in due on December 1957. Thereafter each trans- be to 14, possession March dated party preparation to make the ex- ar- was The sale 5, April ferred change, by moving some articles the to Exchange of Estate Real by the ranged other property evening April until the of to party Utah, each and Ogden, But on the morning April of on commission broker’s pay a 5% 1957, the Ruckers decided to refuse to make the trade and attorneys by their tele- the making this time of At the gram so informed the real agency. estate the of equipment livestock a mortgage with a chattel subject to was Since then the real agency estate has owing. Under $8,454.54 of balance held parties, conferences with both urging December due mortgage became the terms complete deal, them to the and have sub- im- unable were Nielsens The 1, 1957. mitted each to written instruments to pay this money to mediately to borrow effecting executеd in exchange. The March Thereupon, on off. Nielsens willing complete have been agent real estate had the Ruckers exchange and have the instruments by which agreement, by submitted to them to that draw end the real agency, pay the chattel estate and have offered assume agreed to execute required acquired farm all acts an instruments and do under escrow exchange, the contract effect the LuRoy between the P. Nielsens Deem complеte urged have Ruckers to convey purports wife. Exhibit “F” hand, exchange. the Ruckers On the other dairy warranty farm deed from the to consum- unconditionally have refused descriptions Nielsens to the Ruckers. The instituted mate Nielsens exchange. Thе of the farm in both these instruments performance. specific this action to enforce only contain three tracts of land with a plaintiffs’ in trial The found the facts court only However, total of about 52 acres. specific performance favor and decreed convey trial court that decreed appeal. prosecute this the defendants to the Ruckers four tracts of land contain- The contend that the trial court’s Ruckers ing in excess acres. findings in fаcts are not accordance real evidence shows that the They urge since
with the evidence. agency drawing these exhibits mis- appeal is this is an case and only sepa- take three the four described carefully facts, wе should both law and rately tracts of described land which consti- done This we have review the evidence. Dairy No at tute the Nielsen Farm. one findings of court’s and conclude in- claimed the three tracts supported by the evidence amply fact are all the land constituted the cluded reversing for us no basis that there is dairy farm. The contract Exhibit “A” re- findings. dairy equip- farm with all ferred to “The per listing listing cards.” ment as support Appellants claim that following “X” uses the terms : card Exhibit too indefinitе and contract is uncertain miles north three “Location performance con- specific make three * * * * * * Glen Nielsen Owner City : tentions * * * Occupied by Total owner acres Mortgage 1 descrip First, they argue that * * * $29,000 due Contract Bal. J dаiry contract, farm “The owned in the tion $2,000 @Dean to William Nov. wife” does definite by Glen Nielsen * * (Emphasized per year words in *4 land to be traded. Nielsen identify ly printed.) handwriting, words other "F” “E” and which Exhibits point to They dispute clearly without evidence by the real estate drawn instruments are the land described in the decree as identifies by con Nielsens to agency dairy It is only Nielsen farm. purports “E” farm Exhibit trade. summate of they north City claim ownership their or in which Nielsens’ assign the They ownership by In the Jones, elsewhеre. claimed recent case of Johnson 92, 97, 109 Utah retaining agree- reason a title escrow 164 P.2d we quoted approval with Cummings from owing ment on which there is a balance Nielson, 619, 622, Utah 129 P. as about This is in accord with follows: Mortgage 1 words Contract one above the other J “It elementary that in a which brace after the two words indicates is certain which can be made certain. a contract under there is * * * In case certain lands are $29,000 owing. was still a balance of mentioned merely name in a con- Yearly payments $2,000 became due tract, giving a descrip- definite from 1958 each November. The Nielsens * * * tion, the lands intended in the dairy occupying the farm when were may contract always be shown by ex- listing contract card and were made. The trinsic, parol, or documentary evi- slightly has total than 110 farm a more dence.” only statement in the acres. The incorrect pay- listing card is to the effect that Second, appellants contend that the Dean, ments were to be made to William contract was indefinite and uncertain be that the escrow whereas the evidence shows Exhibit “F” cause provision contains a re payments Lu- were serving “grantors Nielsens of one- obviously wife. This is Roy P. Deem and half of all mineral and o'il rights in said listing making in a scrivener’s error property.” But the court did plaintiff introduced At card. recognize decree such reservation. There agreement, Exhibit escrow evidence the is no evidence whatever that parties “D,” Deems and the Nielsens wherein the reservation, on such either necessary papers title in escrow delivered trade, “A,” Exhibit or orally. Box Elder property to the to the Nielsens’ Nor do the Nielsens claim right tо such County to the Bank to be delivered They, reservation. however, admit price purchase upon they had talked with the real agent contain- specified. therein making such a reservation. description the Nielsens’ ed mere fact that the agency real estate drew court, decree of the with the accordance papers containing such reservation does not slightly four tracts of land including make the contract uncertain. foregoing From the 110 aсres. than more Third, appellants clear that think facts we it contend that Dairy Farm is as the Nielsen contract is indefinite described and uncertain because fully identified. definitely and understood that the chattel mortgage *5 paid be the they agreed assume could date and not to the to covenant transfer per monthly mortgaged property installments of without the written $175 be- month, bank, balance would point when fact the consent of the made but no 1957, 1, it con- and December this until thе time the come due trial. is There mortgagor provision that the no showing that chattel mortgage tained a can- the mortgaged the sell or transfer renewed would not and made in accord- written consent property understanding; the ance with the defendants’ the mortgagee. give the that bank would refuse to written consent to transfer the of the mort- “A,” contract, original Exhibit the Under gaged Ruck- property to the Ruckers. pay 14, 1957, to plaintiffs were March dated supplemental agree- ers chose to this make trade was con- mortgage the before the ment of the without investigating the terms to summated, in their efforts failed mortgage com- provisions although the necessary to make such funds the borrow plained chattel of are not unusual payments. defend- March On con- mortgage. we In of these facts view ant Rucker went to real R.W. provisions clude of the contract that mort- this proposed to assume agency and claimed. are not indefinite and uncertain as agree give to would gage if the Nielsens against fourplex mortgage him a first requires One consid other matter mortgage and a home second provides: eration. The contract re- motel, Nielsens were to which thе secure the in the trade to ceive carry hereby agree “We do out the liens on between difference the terms conditions fulfill home, fourplex ** specified and, *. If either above A motel. do, agrees pay party fails so he by Mr. immеdiately drawn effect was enforcing expenses agree- this sign- agency and the real estate Peterson of ment, arising right out of taken the Niel- Ruckers then ed thereof, including a reasonable breach supple- sens, who it. attorneys’ fee.” “B.” con- It Exhibit mental chattel when the provision on no tains plaintiffs awarded to as The court $600 due. would become indebtedness attorneys’ fees. In view of the value of responsibility involved mis- claim is no There counsel ex- efforts The undertaken due date. on Ruckers led the case, including days’ pended in several bank or before consulted Ruckers trial, being strikes us as this fee unreason- due about the and learned April sos so, saying In I do plain- facts in both fact instances.
ably In of the low.1 view put time to further tiffs’ counsel been have being not believe I am inconsistent appeal,2 defending against this and effort in previous pronouncements may I have necessary remanded that the case be it is compensation favoring adequate additional taking purpose of evidence for the attorneys. for the services of to the total making a determination
fee be awarded. concurs, CROCKETT, and also J.,C. HEN- expressed with concurs the views af- judgment on the main case is RIOD, J. respondents. firmed, with costs to attorneys’ fees is vacated judgment on having a full deter- purpose of
for the attorneys’ proper as to the
mination made entered awarded and should be
fees which judgment. part
rounding I rather opinion’s the main whether
as to rendered appraisal the service
general acted the trial court it obvious that
makes arbitrarily capriciously reason, case, aspect respect to
with respect the remainder
reasonably decision, being arbiter of the he Marks, Mason, Utah 160 P. 2. Marks v. 98 Mason Utah 1. 100 P 730; v. Industrial Commis .2d Thatcher 2d sion, P.2d Utah